Solidarity Contribution
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 25 April 2014,
in the following composition:
Geoff Thompson (England), Chairman
Ivan Gazidis (England), member
Alejandro Marón (Argentina), member
Theo van Seggelen (Netherlands), member
Takuya Yamazaki (Japan), member
on the claim presented by the club,
Club P, from country B
as Claimant
against the club,
Club A, from country B
as Respondent
regarding a solidarity contribution dispute related to
the international transfer of the player R
I.
Facts of the case
1.
According to the player passport issued by the country B Football Federation, Plyer
R, from country B (hereinafter: the player), born in January 1985, was registered
with its affiliated club, Club P (hereinafter: the Claimant) as follows:
-
as from 9 June 2003 until 18 July 2007;
as from 18 January 2008 until 1 January 2009.
2.
The football season in country B follows the calendar year.
3.
According to the country B Football Federation, the player was registered with its
affiliated club, Club A (hereinafter: the Respondent), on 19 August 2010.
4.
On 25 August 2012, the Claimant contacted FIFA claiming its proportion of the
solidarity contribution in connection with the transfer of the player from the Club
W, from country G, to the Respondent. In particular, the Claimant claims 2.52% of
the total transfer amount i.e. EUR 3,000,000 corresponding to EUR 75,600 (note: no
interest claimed).
5.
Following a decision of the DRC passed on 7 June 2013, the Respondent provided a
copy of the relevant transfer agreement, for the amount of EUR 3,000,000 payable
as follows:
- EUR 750,000 to be paid on 1 December 2010;
- EUR 750,000 to be paid on 1 December 2011;
- EUR 750,000 to be paid on 1 December 2012;
- EUR 750,000 to be paid on 1 December 2013;
6.
Furthermore, the clubs agreed the following: “If during the term of the employment
contract with the player (until 31st July 2014) Club A will not transfer the federative
and economical rights to any third club and the employment contract between Club
A and the player is not terminated before 31st July 2014 for any other reason
whatsoever, Club A shall be obliged to pay a further and single compensation of Euro
1,000,000 […] to Club W to be paid on 15th August 2014. In case the player is
transferred from Club A to another club on or before 31st July 2014, Club W shall
receive 50% of any transfer fee received by Club A within 10 days after reception by
Club A. In any case and regardless of the transfer fee agreed upon between Club A
and the third club, the minimum amount to be paid by Club A to Club W in case of a
transfer to a third club is Euro 3,000,000 […].
The above stipulated clauses do also apply and entitle Club W to the minimum
amount of 3 million Euros, if the employment contract between Club A and the
player is terminated prematurely for any other reason, especially if the player is
registered for a third club with no transfer compensation being due to Club A”.
7.
In its reply to the Claimant’s claim, the Respondent stated that taking into account
the information provided by the country B Football Federation, according to which
the player was registered with it on 19 August 2010, and considering that the claim
Solidarity contribution in connection with the player R
(Club P, from country B / Club A, from country B)
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of the Claimant was submitted to FIFA on 24 August 2012, more than two years have
elapsed and therefore, the claim of the Claimant is prescribed.
8.
In addition, the Respondent requested that in case the DRC does not reject the claim
because of its prescription, the Claimant’s requests shall be rejected partially, since
the solidarity contribution is due to the player’s training and education only until the
player’s 19th birthday since the player won the “XY Cup” with Club P in 2005 and in
2006 it played the “XYZ Cup” also with Club P, which proves that the player’s
training and education period was completed before his 21st birthday and, as an
effect, that the solidarity contribution, consequently to the player’s training and
education, is only due until the player’s 19th birthday.
9.
Moreover, the Respondent argued that “the last installment is still unpaid and must
be paid on December 2013 - and considering that the solidarity contribution is
directly related to the transfer fee installment’s payments, 25% […] of the solidarity
contribution only will be due after the payment of the transfer fee’s last
installment”.
10.
Finally, the Respondent requests the DRC to partially dismiss the Claimant’s claim and
to recognize that 25% of the solidarity contribution only will be due after the
payment of the last installment.
11.
In its replica, the Claimant rejected the Respondent’s arguments, according to which
the claim for solidarity contribution is prescribed. In this context, the Claimant
referred to art 25 par. 5 of the Regulations on the Status and Transfer of Players
(hereinafter: The Regulations), according to which no more than two years had
elapsed since the transfer took place.
12.
With regard to the Respondent’s arguments, according to which the training and
education period of the player had been concluded before his 19 th birthday, the
Claimant referred to Annex 5, art. 1 of the Regulations and stated that the
Regulations “do not require situations or championships that would influence on
football players and their careers” and that it “fixes the solidarity mechanism
exclusively in a temporal aspect”.
13.
Lastly, the Claimant pointed out that the amount due as contribution, so far,
corresponds to the amount paid until today. If there is any outstanding installment,
then the solidarity mechanism will only be due on the occasion that the referred
value is paid.
14.
In its final position, the Respondent maintained its previous argumentation.
Solidarity contribution in connection with the player R
(Club P, from country B / Club A, from country B)
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II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter: DRC or Chamber) analysed
which procedural rules are applicable to the case at hand. In this respect, it took
note that the present matter was submitted to FIFA on 25 August 2012.
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 3 of the
2008 Procedural Rules).
2.
In continuation, the Chamber referred to art. 3 par. 1 of the Procedural Rules and
confirmed that, in accordance with art. 24 par. 1 and 2 in combination with art. 22
lit. e) of the Regulations on the Status and Transfer of Players (edition 2008;
hereinafter: the Regulations), the DRC was competent to decide on the present
litigation which is of an international dimension, and concerns the distribution of
solidarity contribution between two clubs belonging to the same associations in
connection with the international transfer of the player, between clubs belonging
to different associations.
3.
At this point, the Chamber stated that prior to deliberating on the substance of the
matter, the DRC must verify whether the competent FIFA body would be able to
deal with the present affair or not for formal reasons. In particular, the Chamber
took note of the formal objection of the Respondent, according to which the
Claimant’s claim would be prescribed, since the player was registered with the
Respondent on 19 August 2010, and the claim of the Claimant was submitted to
FIFA on 24 August 2012.
4.
In this context, the Chamber referred to art. 25 par. 5 of the Regulations (edition
2008), in connection with the Procedural Rules, which stipulate that the decisionmaking bodies of FIFA shall not hear any dispute if more than two years have
elapsed since the facts leading to the dispute arose and that the application of this
time limit shall be examined ex officio in each individual case.
5.
Subsequently, the members of the Chamber emphasized that according to art. 2
par. 1 of Annex 5 to the Regulations the new club shall pay the solidarity
contribution to the training club(s) pursuant to the above provisions no later than
30 days after the player’s registration or, in case of contingent payments, 30 days
after the date of such payments. Equally, the Chamber took note of the information
provided by the country B Football Federation, according to which, the player was
registered with the Respondent on 19 August 2010.
6.
In this regard, the Chamber observed that the Claimant’s possible claim for
solidarity contribution against the Respondent arose on the thirty-first day after the
player was registered for the Respondent. In other words, until the thirtieth day
after the registration of a player for his new club at the new association, no event
giving rise to a dispute would have occurred and, consequently, no claim could have
Solidarity contribution in connection with the player R
(Club P, from country B / Club A, from country B)
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arisen since until that point in time the player’s new club would still have possibility
to fulfil its obligations as provided by the relevant provisions of the Regulations.
7.
On account of the above, the Chamber came to the conclusion that the event giving
rise to the dispute occurred on 19 September 2010, i.e. 31 days after the registration
of the player for the country B Football Federation, reason for which the Claimant’s
claim cannot be declared barred by the statute of limitations in application of art.
25 par. 5 of the Regulations, since the claim was lodged on 25 August 2012, thus
within the time limit of 2 years, which elapsed on 19 September 2012.
8.
Having established that the claim of the Claimant is admissible, the Chamber went
on to analyse which Regulations were applicable as to the substance of the matter.
In this respect, it confirmed that, in accordance with art. 26 par. 1 and 2, and art. 29
of the 2008 edition of the Regulations, and considering that the player was
registered with the Respondent on 19 August 2010, the 2009 edition of said
Regulations was applicable to the matter at hand as to the substance.
9.
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.
10.
In this regard, the DRC started by acknowledging that the Claimant is requesting
2.52% of the total transfer amount, corresponding to EUR 75,600 based on the
transfer agreement provided by the Respondent following a decision of the DRC.
According to the transfer agreement provided by the Respondent, the transfer fee
amounted to EUR 3,000,000 payable in four instalments, as follows: EUR 750,000 to
be paid on 1 December 2010, EUR 750,000 to be paid on 1 December 2011, EUR
750,000 to be paid on 1 December 2012 and EUR 750,000 to be paid on 1 December
2013.
11.
In continuation, the DRC took note that, the Respondent rejects partially the claim,
alleging that the player’s training and education period was completed before his
21st birthday. Thus, solidarity contribution is only due until the player’s 19 th birthday.
12.
Equally, the Chamber noticed that the Respondent stated that 25% of the solidarity
contribution only will be due after the payment of the last instalment.
13.
In this respect, the Chamber referred to the well-established jurisprudence of the
DRC which has to be applied in the present matter 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.
Solidarity contribution in connection with the player R
(Club P, from country B / Club A, from country B)
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14.
Regarding the first argument, the members of the Chamber deemed it appropriate
to recall the general principle of burden of proof stipulated in art. 12 par. 3 of the
Procedural Rules, according to which any party claiming a right on the basis of an
alleged fact shall carry the burden of proof. In this context, the Chamber considered
that the Respondent did not provide any documentary evidence to support its
allegations.
15.
Regarding the second argumentation, the DRC took into consideration that
currently, all instalments have fallen due and there was no evidence that the
Respondent paid any amounts to the Claimant as solidarity contribution.
16.
On account of the above and in accordance with art. 21 and art. 1 par. 1 of Annexe
5 of the Regulations, the Chamber stressed that, in view of the international
transfer of the player from Club W to the Respondent and in view of the transfer
compensation paid by the Respondent to Club W, solidarity contribution had fallen
due.
17.
In view of the foregoing, the Chamber decided that the Respondent is liable to pay
the relevant proportion of the 5% solidarity contribution to the Claimant.
18.
Having confirmed the above-mentioned obligation incumbent on the Respondent,
the DRC went on to establish the proper calculation of the relevant proportion of
solidarity contribution due to the Claimant.
19.
In this regard, the Chamber referred to art. 1 of Annexe 5 of the Regulations, the
relevant amount of solidarity contribution shall reflect the number of years for
which a player is registered with the relevant club between the seasons of the
player’s 12th and 23rd birthdays.
20.
In continuation, the Chamber recalled that the country B Football Federation had
confirmed that the player, born on 4 January 1985, was registered with the
Claimant as from 9 June 2003 until 18 July 2007 and as from 18 January 2008 until 1
January 2009. Therefore, the DRC established that the player had been registered
with the Claimant during 7 months during the season of his 18th birthday, 3 entire
seasons, from his 19th to his 21st birthday, 7 months during the season of his 22nd
birthday and 11months during the season of his 23rd birthday. Consequently, the
DRC established that the Claimant is entitled to receive 2.52% of the compensation
paid by the Respondent to Club W, i.e 2.52% of EUR 3,000,000.
21.
In view of all of the above, the members of the DRC decided that the Respondent
must pay to the Claimant the amount of EUR 75,600.
22.
Finally, 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 solidarity mechanism costs in the maximum amount of currency of
Solidarity contribution in connection with the player R
(Club P, from country B / Club A, from country B)
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country H 25’000 are levied. The costs are to be borne in consideration of the
parties’ degree of success in the proceedings.
23.
In this respect, and taking into account that the claim of the Claimant has been
accepted, the DRC concluded that the costs of the current proceedings before FIFA
have to be paid by the Respondent.
24.
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.
25.
On that basis, the DRC held that the amount to be taken into consideration in the
present proceedings is EUR 75,600 related to the claim of the Claimant.
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).
26.
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 10,000. Consequently, the DRC decided that the amount of currency of
country H 10,000 has to be paid by the Respondent in order to cover the costs of the
present proceedings.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Club A, is admissible.
2.
The claim of the Claimant, Club P, is accepted.
3.
The Respondent, Club A, has to pay to the Claimant, Club P, the amount of EUR
75,600 within 30 days as from the date of notification of this decision.
4.
If the aforementioned sum is not paid within the above-mentioned time limit, an
interest rate of 5% p.a. will apply on the said amount as of expiry of the time limit
until the date of effective payment and the present matter shall be submitted, upon
request, to FIFA’s Disciplinary Committee for consideration and a formal decision.
5.
The final costs of the proceedings in the amount of currency of country H 10,000 are
to be paid by the Respondent, Club A, within 30 days of notification of the
present decision, to FIFA to the following bank account with reference to case no.:
6.
The Claimant, Club P, is directed to inform the Respondent, Club A, 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.
Solidarity contribution in connection with the player R
(Club P, from country B / Club A, 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 Dispute Resolution Chamber:
Jérôme Valcke
Secretary General
Enclosed: CAS directives
Solidarity contribution in connection with the player R
(Club P, from country B / Club A, from country B)
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