Solidarity Contribution
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 26 April 2012,
in the following composition:
Geoff Thompson (England), Chairman (did not take part in the deliberations)
Carlos Soto (Chile), member
Brendan Schwab (Australia), member
Todd Durbin (USA), member
Damir Vrbanovic (Croatia), member
on a matter between the club
Club R, from country A
and the club
Club S, from country B
and the club
Club T, from country C
as “Intervening party”
regarding a dispute for solidarity contribution in connection with
the international transfer of the player F.
I.
Facts of the case
1.
The country A Football Association confirmed that the player F (hereinafter: “the
player”), was registered with its affiliated club, Club R (hereinafter: “Club R”), as
amateur as from 18 March 1994 until 7 June 2002 and as professional as from 8
June 2002 until 25 July 2003.
2.
The sporting season in country A 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.
On 23 July 2003, the player signed an employment contract with the Club T, from
country C (hereinafter: “the Intervening party”), valid from 23 July 2003 to 30 June
2007.
4.
On 5 December 2003, the Intervening party authorised Mr M (hereinafter: “the
Agent”), in his capacity as an country A Football Association-licensed players’
agent, to represent it in connection with the transfer of the player to any club in
country B.
5.
On 22 December 2003, the Club S, from country B (hereinafter: “Club B”) signed
an agreement with the Agent and “Dr C”, i.e. the player’s representative (called
the “intermediaries” in the agreement). Art. 1 of the aforementioned agreement
stipulates the following: “The club acknowledges that it owes the intermediaries
the sum of nine hundred thousand dollars (USD 900,000) for their management,
negotiations and actions which have resulted in the football player F’s
incorporation into the club, moving from the club T, from country C”. Art. 5
stipulates that the intermediaries are jointly responsible for paying up to a
maximum of USD 50,000 to Club R in case the latter would claim for training
compensation.
6.
According to the International Transfer Certificate (ITC) issued by the country C
Football Association, on 9 January 2004 the player was transferred from the
Intervening party to Club S.
7.
According to the information provided by the country B Football Federation, on
16 January 2004 the player was registered with Club S.
8.
On 23 November 2004, Club S and the Club U, from country D, concluded an
agreement for the transfer of the player for an amount of EUR 4,700,000.
9.
On 25 November 2004, the Intervening party and Club U concluded a “Financial
Agreement” by means of which the Intervening party “accepts payment of EUR
350,000 in respect of 20% sell-on-clause concerning the player F´s transfer from
Club S, from country B to Club U, from country D”. The cited amount would be
payable by Club U to the Intervening party on 15 January 2005.
Solidarity contribution for the transfer of the player F
(Club R, from country A / Club S, from country B / Club T, from country C)
2
10.
On 10 February 2005, Club R lodged a claim in front of FIFA against Club S for nonpayment of the solidarity contribution arising from the international transfer of
the player from the intervening party to Club S. In this respect, Club R requested
90 % of the 5% of the transfer amount plus interests.
11.
On 10 June 2005, Club S provided a statement in which it questioned Club R´s right
to receive the relevant solidarity contribution. In this respect, Club S maintained
that when the player was transferred to the Intervening party, the latter had paid
sufficient compensation to the player´s training clubs. Furthermore, Club S alleged
that the solidarity contribution is due only when the player signs his first contract
as a professional.
12.
On 10 June 2005, Country A Football Association contested Club S’s interpretation
of art. 25 of the Regulations for the Status and Transfer of Players and requested
that the present matter be submitted to the Dispute Resolution Chamber (DRC) for
a formal decision.
13.
FIFA asked Club S on several occasions for the transfer agreement concluded
between the latter and the Intervening party without success. As a consequence,
on 23 November 2005, the DRC passed a decision in which it ordered Club S to
present the relevant transfer agreement which it had allegedly entered into with
the Intervening party for the transfer of the player, so that the economic terms of
the transfer might be established.
14.
On 2 February 2006, Club S informed FIFA that it had not concluded an agreement
with the Intervening party directly, but through its representative, the Agent, on
22 December 2003 and for a total amount of USD 900,000. Therefore, Club S
deemed that any payment of solidarity mechanism had to be requested to the
Intervening party.
15.
Furthermore, Club S enclosed the following documentation:
a) the Intervening party´s letter dated 26 November 2003 addressed to the
Country C Football Association by means of which, it requested the Country C
Football Association to ask FIFA for special dispensation to grant the player a
second move during that football season due to difficulties he was experiencing
to adapt and which were affecting him psychologically;
b) the Intervening party´s letter dated 23 December 2003 by means of which it
confirmed to Club S that in case of a subsequent transfer of the player, the
latter would have to pay 20% of the transfer amount to the Intervening party;
c) 3 payments for a total amount of USD 900,000 into the Agent’s bank account,
i.e. USD 450,000 on 20 January 2004, USD 225,000 on 2 July 2004 and USD
225,000 on 31 August 2004.
16.
The Intervening party informed FIFA that in December 2003 the employment
contract concluded with the player was terminated by mutual agreement and that
the player had been transferred to Club S “free of charge”, i.e. they had not
agreed any transfer compensation, they had only agreed on the Intervening
party’s right to receive 20% in the event of a subsequent transfer of the player.
Solidarity contribution for the transfer of the player F
(Club R, from country A / Club S, from country B / Club T, from country C)
3
The Intervening party enclosed some evidences, i.e. a letter dated 22 December
2003, in which Club S informed the Intervening party the aforementioned terms of
their negotiation and another letter dated 23 December 2003 from the
Intervening party to Club S accepting the relevant conditions.
17.
Moreover, the Intervening party informed FIFA that it had negotiated the
payment of the relevant sell-on-fee (20%) directly with the player’s new club, Club
U, and that ultimately they had concluded an agreement on 25 November 2004
for a total sum of EUR 350,000.
18.
Given the replies from Club S and the Intervening party, Club R stressed that it
found it particularly noteworthy that the player had been transferred on 25 July
2003 from Club R to the Intervening party for an amount of USD 3,700,000, and
that only six months later the player was allegedly transferred “free of charge”
from the Intervening party to Club S or for the sum of USD 900,000 which was paid
to the Agent. Furthermore, Club S emphasised that the player had subsequently
been transferred to Club U for an amount of EUR 4,700,000.
19.
Consequently, Club R requested that the solidarity contribution in question be
calculated “at the very least” based on the sum of USD 900,000 which Club S had
paid the Agent representing the Intervening party, plus the sum of EUR 940,000
(20% of EUR 4,700,000) arising from the new transfer.
20.
On 23 February 2007, the DRC passed a decision suspending the proceedings on
the payment of the solidarity contribution arising from the transfer of the player
to Club S so that it might acquire more information that would put it in a position
to determine the transfer compensation and consequently calculate the solidarity
contribution requested by Club R. In its decision, the DRC also decided to refer the
matter to the FIFA Players’ Status Committee so that the Agent’s conduct would be
investigated.
21.
Following an investigation process, the Single Judge of the Players’ Status
Committee on 11 August 2010 concluded that:
a) on 5 December 2003, the Intervening party had authorised the Agent to
negotiate the transfer of the player to any club from country B;
b) on 22 December 2003, Club S had signed an agreement with the Agent for the
transfer of the player without being specified in it on which behalf the Agent
was acting;
c) Club S had paid directly the Agent the amount of USD 900,000;
d) The Intervening party was not informed about the agreement dated 22
December 2003 concluded between Club S and the Agent.
22.
As a result, the Single Judge of the Players’ Status Committee ruled that this case
was in fact a case of double representation, given that the Agent apparently
represented two parties (the Intervening party and Club S) with conflicting
interests in negotiating the transfer of the player, and therefore ordered the
Agent to pay a fine of CHF 30,000 for breach of art. 14 (d) of the Players’ Agents
Regulations.
Solidarity contribution for the transfer of the player F
(Club R, from country A / Club S, from country B / Club T, from country C)
4
23.
As it stands, Club R requests that the DRC pass a decision on the payment of the
solidarity contribution arising from the transfer of the player from the Intervening
party to Club S.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter: “the Chamber” or “the
DRC”) 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
10 February 2005. Consequently, the Chamber concluded that, in accordance with
art. 18 par. 2 and 3 of the Rules Governing the Procedures of the Players´ Status
Committee and the Dispute Resolution Chamber (edition 2005) in combination
with art. 21 par. 2 and 3 of the Rules governing the procedures of the Players´
Status Committee and the Dispute Resolution Chamber (edition 2008), the 2001
edition of the Rules Governing the Practice and Procedures of the Dispute
Resolution Chamber (hereinafter: “the Procedural Rules”) is, in principle,
applicable to the matter at hand.
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Rules
governing the procedures of the Players´ Status Committee and the Dispute
Resolution Chamber (edition 2008) and confirmed that in accordance with art. 24
par. 1 in combination with art. 22 lit. d) of the Regulations on the Status and
Transfer of Players (edition 2010), the DRC is competent to decide on the present
litigation concerning the distribution of solidarity contribution claimed by Club R
in connection with the international transfer of the player to Club S.
3.
Furthermore, the Chamber analysed which regulations should be applicable as to
the substance of the matter. In this respect, the Chamber confirmed that in
accordance with art. 26 par. 1 and 2 of the Regulations for the Status and Transfer
of Players (edition 2005) in combination with art. 26 par. 1 and 2 of the
Regulations on the Status and Transfer of Players (editions 2008, 2009 and 2010)
and considering that the present claim was lodged on 10 February 2005 as well as
that the player was registered with his new club on 16 January 2004, the 2001
version of the Regulations for the Status and Transfer of Players (hereinafter: “the
Regulations”) is applicable to the present matter 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. The members
of the Chamber started by acknowledging the facts of the case as well as the
documentation contained in the file.
5.
In particular, the Chamber took note that Club R is claiming its alleged proportion
of the solidarity contribution in connection with the international transfer of the
player which took place on 9 January 2004, from the Intervening party to Club S.
Solidarity contribution for the transfer of the player F
(Club R, from country A / Club S, from country B / Club T, from country C)
5
6.
In this regard, the Chamber recalled its previous decision dated 23 February 2007,
in which it suspended the proceedings of the matter at stake in order to obtain
more information to properly calculate the solidarity contribution requested by
Club R. Moreover, the Chamber remarked that at that time, it referred the present
matter to the Players´ Status Committee with the goal to investigate the
involvement of the Agent in the transfer of the player from the Intervening party
to Club S.
7.
Subsequently, the Chamber pointed out that on 11 August 2010, the Single Judge
of the Players’ Status Committee (hereinafter: “the Single Judge”) passed a
decision in which it was established that even though the Intervening party
authorized the Agent to represent it in front of clubs from country B with the aim
to transfer the player, the Intervening party was completely unaware of the
agreement dated 22 December 2003 concluded between the Agent and Club S for
the transfer of the player for an amount of USD 900,000.
8.
In particular, the Chamber took note that, in his investigation, the Single Judge
established that the Intervening party did not receive the amount of USD 900,000,
neither totally nor partially, paid by Club S to the Agent in connection with the
transfer of the player.
9.
Furthermore, the Chamber emphasized, that the Single Judge in his decision
concluded that in the negotiations for the aforementioned transfer of the player,
the Agent was, in fact, representing the two cited clubs which had conflicting
interests and that by doing this, the Agent violated art. 14 (d) of the Players’
Agents Regulations.
10.
In light of the above, the Chamber concluded that the amount of USD 900,000
paid by Club S to the Agent is not relevant for the matter at stake.
11.
In continuation, the Chamber focussed its attention to the content of the letters
dated 22 December 2003 (Club S´s proposal) and 23 December 2003 (Intervening
party´s acceptance) and concluded that it was uncontested that the Intervening
party and Club S agreed upon for the transfer of the player, a sell-on-fee (20%), in
favour of the Intervening party in case of a subsequent transfer of the player.
12.
In this context, the Chamber pointed out that on 23 November 2004 the player
was transferred from Club S to Club U for an amount of EUR 4,700,000 and thus,
the relevant sell-on-fee agreed between the Intervening party and Club S became
due.
13.
However, the Chamber took note that although the Intervening party and Club S
agreed on a sell-on-fee of 20% of any compensation that it would be paid to the
latter in the event of a subsequent transfer of the player, the Intervening party
and Club U negotiated the relevant amount and at last agreed on a total sum of
EUR 350,000.
Solidarity contribution for the transfer of the player F
(Club R, from country A / Club S, from country B / Club T, from country C)
6
14.
Therefore, based on the documents and evidences at disposal, the Chamber
confirmed that the only amount received by the Intervening party in connection
with the transfer of the player on 9 January 2004 from the latter to Club S was the
relevant sell-on-fee for an amount of EUR 350,000.
15.
In this context, the Chamber recalled that as established in the art. 25 par. 1 of the
Regulations in conjunction with art. 10 of the Chapter IV of the Regulations
governing the Application of the Regulations for the Status and Transfer of
Players (hereinafter: “the Application Regulations”), if a non-amateur player
moves during the course of a contract, 5% of any compensation paid to the
previous club will be distributed 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 ages of 12 and 23.
16.
In view of the aforementioned, the Chamber underlined that for the calculation
of the solidarity contribution any compensation paid by the new club to the
previous club has to be taken into account.
17.
Therefore, the Chamber concluded that in the matter at stake, the solidarity
contribution claimed by Club R has to be calculated taking into consideration the
sum of EUR 350,000, since it was the only amount received by the Intervening
party in connection with the transfer of the player to Club S.
18.
In continuation, the Chamber took note that during the investigation of the
matter at stake, Club S alleged that any payment of solidarity contribution in
connection with the transfer of the player had to be requested to the Intervening
party.
19.
Subsequently and directly related to the above, the Chamber 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. 11 par. 1 and 2 of
the Chapter IV of the Application Regulations. At the same time, according to the
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.
20.
In light of the foregoing, the Chamber decided that Club S is liable to pay the
relevant proportion of the 5% solidarity contribution to Club R and that the
Intervening party must reimburse the same proportion of the 5% solidarity
contribution to Club S.
21.
In continuation, having confirmed the above-mentioned obligation incumbent on
Club S, the Chamber went on to establish the proper calculation of the relevant
proportion of solidarity contribution due to Club R.
Solidarity contribution for the transfer of the player F
(Club R, from country A / Club S, from country B / Club T, from country C)
7
22.
The members of the Chamber subsequently referred to art. 10 of the Chapter IV of
the Application 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 it provided him with training and education.
23.
In particular, the Chamber recalled that the Country A Football Association had
confirmed that the player, was registered with Club R as amateur as from 18
March 1994 until 7 June 2002 and as professional as from 8 June 2002 until 25 July
2003 and that the relevant compensation amounts to EUR 350,000.
24.
Consequently, the Chamber established that in accordance with the breakdown
provided for in art. 10 of the Chapter IV of the Application Regulations, Club R is
entitled to receive 84,58% of 5% of the compensation paid to the Intervening
party for the transfer of the player from the latter to Club S.
25.
As it was ascertained that the amount received by the Intervening party for the
relevant transfer of the player was EUR 350,000, the Chamber established that
Club R is entitled to receive 84,58% of 5% of the amount of EUR 350,000, i.e. EUR
14,801.
26.
In view of all the above, the Chamber decided that Club S must pay to Club R as
solidarity contribution the amount of EUR 14,801 and the Intervening party must
reimburse the relevant amount of EUR 14,801 to Club S.
27.
Lastly, the Chamber referred to art. 18 par. 1 of the 2008 edition of the Rules
governing the procedures of the Players´ Status Committee and the Dispute
Resolution Chamber, i.e. the current 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 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 Annexe
A of the cited current procedural rules, the costs of the proceedings are to be
levied on the basis of the amount in dispute.
28.
In respect of the above, the Chamber held that taken into consideration the claim
of Club R the maximum amount of costs of the proceedings corresponds to CHF
10,000 (cf. table in Annexe A).
29.
As a result, and taking into consideration that the claim of Club R has been
partially accepted, the Chamber concluded that Club R and Club S have to bear
the costs of the current proceedings in front of FIFA.
30.
Considering the above, and taking into account that the case at hand did show
particular factual difficulty and legal complexity, the Chamber determined the
costs of the current proceedings to the amount of CHF 8,000.
Solidarity contribution for the transfer of the player F
(Club R, from country A / Club S, from country B / Club T, from country C)
8
31.
Finally, the Chamber decided that the amount of CHF 6,000 has to be paid by Club
S and the amount of CHF 2,000 has to be paid by Club R, in order to cover the
costs of the present proceedings.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Club R, is partially accepted.
2.
The Club S, has to pay to the club Club R, the amount of EUR 14,801 within 30
days as from the date of notification of this decision.
3.
Any further claims lodged by the Club R, are rejected.
4.
If the aforementioned sum is not paid within the aforementioned deadline, an
interest rate of 5% per year will apply as of expiry of the fixed time limit and the
present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee
for its consideration and a formal decision.
5.
The final amount of costs of the proceeding amounting to CHF 8,000 are to be
paid, within 30 days as from the date of notification of the present decision, as
follows:
5.1 CHF 6,000 by Club S, to FIFA to the following bank account with reference to
case no. XX-XXXXX:
5.2 CHF 2,000 by the Club R, to FIFA to the following bank account with reference
to case no. XX-XXXX:
6.
Club R, is directed to inform the Club S, directly and immediately of the account
number to which the remittance is to be made in accordance with the above point
2 and to notify the Dispute Resolution Chamber of every payment received.
7.
The Intervening party, Club T, from country C, has to reimburse the amount of
EUR 14,801 to Club S, within 30 days as from the date of notification of this
decision.
8.
If the aforementioned sum is not paid by the Intervening party, Club T, within the
aforementioned deadline, an interest rate of 5% per year will apply as of the
expiry of the fixed 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 S, is directed to inform the Intervening party, Club T, directly and
immediately of the account number to which the remittance is to be made in
accordance with the above point 7 and to notify the Dispute Resolution Chamber
of every payment received.
Solidarity contribution for the transfer of the player F
(Club R, from country A / Club S, from country B / Club T, from country C)
9
*****
Note relating to the motivated decision (legal remedy):
According to article 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 transfer of the player F
(Club R, from country A / Club S, from country B / Club T, from country C)
10