Solidarity Contribution
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 24 April 2015,
in the following composition:
Geoff Thompson (England), Chairman
Theo van Seggelen (Netherlands), member
Todd Durbin (USA), member
on the claim presented by the club,
Club A, from country B
as Claimant
against the club,
Club C, from country D
as Respondent
regarding solidarity contribution in connection with the
international transfer of the Player E
I.
Facts of the case
1.
According to the player passport issued by the Football Federation from country B,
the Player E (hereinafter: the player), born on 15 February 1993, was registered
with the club from country B, Club A (hereinafter: the Claimant), as from 16
August 2012 until 2 September 2013 as a professional.
2.
The football seasons in country B during the period of time the player was
registered with the Claimant started on 1 July and ended on 30 June of the
following year.
3.
The Football Federation from country D confirmed that the player was
registered with its affiliated club, Club C (hereinafter: the Respondent), on 2
September 2013 as a professional.
4.
On 29 August 2013, the Respondent paid the amount of EUR 20,000,000 to the
Claimant, for the definitive transfer of the federative rights of the player.
5.
On 11 March 2015, the Claimant contacted FIFA claiming its proportion of the
solidarity contribution in connection with the transfer of the player concerned
from the Claimant to the Respondent. In particular, the Claimant requested
the amount of EUR 108,333 plus interest at a rate of 5% p.a. as from 30 days
after the decision, as well as procedural costs in the amount of CHF 4,000.
6.
In support of its claim, the Claimant explained that the employment contract
with the player, in accordance with the decree from country B, included an
indemnification clause which stipulated that in case of a unilateral termination
of the employment contract by the player, the latter had to pay the amount of
EUR 20,000,000 to the Claimant.
7.
Furthermore, the Claimant argued that, on 28 August 2013, it was notified of
the intention of the player to leave the club. Subsequently, on 29 August 2013,
a legal representative of the Respondent appeared together with the player at
the office of the Country B League and deposited a check in the amount of
EUR 20,000,000 in favour of the Claimant. In this respect, the player declared
that with the payment of the buy-out clause, all his economic obligations
Solidarity Contribution for the Player E
(Club A, from country B / Club C, from country D)
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towards the Claimant are fulfilled and the Claimant is, as a result,
compensated for the damages suffered due to the early termination of the
employment relationship. Besides, the Claimant explained that on this occasion
the Respondent declared that it was interested in the services of the player
and that for that reason, it was willing to pay the buy-out clause for the player
to compensate the damages suffered by the Claimant.
8.
As a result, the Claimant stated that the amount of EUR 20,000,000 it received
should not only be considered a transfer compensation triggering the payment
of the Respondent to pay solidarity contribution, but also that said amount of
EUR 20,000,000 should be considered a net amount destined to compensate its
damages and that any solidarity contribution should be paid by the
Respondent on top of the buyout clause.
9.
In its reply to the comments of the Claimant, the Respondent argued that the
Claimant’s assertion that the amount of EUR 20,000,000 was a net amount,
was neither ever negotiated nor stipulated in any agreement between the
parties. Therefore, the reasoning advanced by the Claimant should be deemed
non sustainable.
10.
Equally, the Respondent referred to previous CAS jurisprudence according to
which the amount of EUR 20,000,000 equates to the transfer amount which (i)
the solidarity contribution is incorporated, (ii) any amounts of solidarity
contribution can be withheld by the new club and (iii) any amounts arising in
the context of solidarity contribution are to be reimbursed to the new club in
the event that it is required to make a payment to another club. Therefore,
the Respondent emphasized that there is no basis for the Claimant to request
solidarity contribution in addition to the amount of EUR 20,000,000 it already
received from the Respondent in connection with the transfer of the player to
the latter club.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as
DRC or Chamber) analysed which Procedural Rules were applicable to the
matter at hand. In this respect, it referred to art. 21 of the Rules Governing the
Solidarity Contribution for the Player E
(Club A, from country B / Club C, from country D)
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Procedures of the Players’ Status Committee and the Dispute Resolution
Chamber (hereinafter: the Procedural Rules) as well as to the fact that the
present matter was submitted to FIFA on 11 March 2015. Therefore, the DRC
concluded that the 2015 edition of the Procedural Rules is applicable to the
matter at hand.
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
combination with art. 22 lit. (d) of the Regulations on the Status and Transfer
of Players (edition 2015), the Dispute Resolution Chamber is competent to deal
with the matter at stake concerns the distribution of solidarity contribution
between clubs belonging to different associations.
3.
In this respect, the Chamber was eager to emphasize that contrary to the
information contained in FIFA’s letter dated 20 April 2015 by means of which
the parties were informed of the composition of the Chamber, the member
Philippe Diallo and the member Leonardo Grosso refrained from participating
in the deliberations in the case at hand, due to the fact that the member
Philippe Diallo has the same nationality as the Respondent and that, in order
to comply with the prerequisite of equal representation of club and player
representatives,
also
the
member
Leonardo
Grosso
refrained
from
participating and thus the Dispute Resolution Chamber adjudicated the case in
presence of three members in accordance with art. 24 par. 2 of the
Regulations.
4.
Furthermore, and taking into consideration that the player was registered with
his new club on 2 September 2013, the Chamber analysed which regulations
should be applicable as to the substance of the matter. In this respect, it
confirmed that in accordance with art. 26 par. 1 and par. 2 of the Regulations
on the Status and Transfer of Players (editions 2012, 2014 and 2015), the 2012
version of the said Regulations is applicable to the present matter as to the
substance.
5.
The competence of the DRC 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 on file. However, the Chamber emphasized that in
Solidarity Contribution for the Player E
(Club A, from country B / Club C, from country D)
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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.
6.
In this regard, the DRC started by acknowledging that, on the one hand, the
player and the Claimant signed an employment contract which, inter alia,
stipulated the right of the player to terminate his employment contract with
the Claimant against the payment of EUR 20,000,000, based on the decree
from country B.
7.
The Chamber also observed that it had been established that on 28 August 2013,
the player informed the Claimant of his intention to unilaterally terminate the
employment contract. Furthermore, the Chamber took note of the fact that on 29
August 2013, a legal representative of the Respondent appeared together with
the player at the office of the Country B League and deposited a check in the
amount of EUR 20,000,000 in favour of the Claimant.
8.
Thus, in view of the above, the DRC concluded that it had been established
and was not contested by the parties to this dispute, that the employment
contract between the player and the Claimant had terminated at the above
mentioned date, i.e. on 29 August 2013, as a result of the payment of the sum
of EUR 20,000,000 to the Claimant.
9.
The DRC further noted that the parties did not dispute that the player in
question signed an employment contract with the Respondent subsequently
and was registered with the latter club on 2 September 2013.
10.
Furthermore, the Chamber took note that the Claimant had stated that the
amount of EUR 20,000,000 it received should be considered a transfer
compensation in the sense of art. 1 of Annexe 5 of the Regulations and a net
amount, destined to compensate its damages and that any solidarity
contribution should be paid by the Respondent on top of the aforementioned
amount.
11.
In continuation, the DRC took note that the Claimant is requesting solidarity
contribution in the amount of EUR 108,333 based on the amount of EUR
Solidarity Contribution for the Player E
(Club A, from country B / Club C, from country D)
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20,000,000 paid by the Respondent to it in connection with the move of the player
from the Claimant to the Respondent.
12.
Subsequently, the DRC continued by taking note of the arguments of the
Respondent and in particular of the fact that the latter club argued that the
move of the player should not be considered a transfer, in view of the
particularities and the characteristics of indemnification or buy-out clauses
based on the decree from country B.
13.
Finally, the DRC took note that the Respondent had argued that the Claimant’s
consideration that the amount of EUR 20,000,000 was a net amount was
neither negotiated nor stipulated in any agreement between the parties which
is why the Claimant’s reasoning should be deemed non sustainable.
14.
Firstly, the Chamber recalled 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.
15.
Consequently, the DRC decided to first analyse, irrespective of the question
whether the move of the player under the decree from country B should be
considered as a transfer in the narrow sense of the Regulations, if the Claimant
would be entitled to request solidarity contribution from the Respondent, on
top of the amount of EUR 20,000,000 it already received from the latter club.
16.
In this regard, the Chamber recalled that the Claimant itself had argued that the
amount of EUR 20,000,000 should be considered a net amount as to the
compensation of the damages incurred by the Claimant due to the early
termination of the employment contract by the player, i.e. arguing that solidarity
contribution should be paid on top of this net amount of EUR 20,000,000.
However, in view of the particularities of the specific case and the
characteristics of buy-outs in connection with the decree from country B and
the indemnification clause included in the employment contract between the
player and the Claimant, the Chamber formed the belief that by accepting to
include the amount of EUR 20,000,000 in the employment contract with the
player, the Claimant impliedly accepted that such amount was a net amount in
the sense that also solidarity contribution should already be included in such
amount.
Solidarity Contribution for the Player E
(Club A, from country B / Club C, from country D)
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17.
Hence, the DRC concluded that the Claimant is not entitled to claim solidarity
contribution payments on top of the amount of EUR 20,000,000 it already
received from the Respondent. Consequently, the DRC decided that Claimant’s
request for the payment of solidarity contribution from the Respondent has to
be rejected.
18.
Lastly, the DRC referred to art. 18 par. 1 of the Procedural Rules, according to
which, in proceedings before the DRC, including the DRC 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).
19.
According to Annexe A of the Procedural Rules, the costs of the proceedings
are to be levied on the basis of the amount in dispute. On that basis, the DRC
held that the maximum amount of costs of the proceedings corresponds to
CHF 15,000 (cf. table in Annexe A).
20.
In respect of the above, and taking into account that the claim of the Claimant
has rejected, the DRC concluded that the Claimant has to bear the costs of the
current proceedings in front of FIFA.
21.
Considering the above, the DRC determined the costs of the current proceedings
to the amount of CHF 10,000 which shall be borne by the Claimant.
*****
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Club A, is rejected.
2.
The final costs of the proceedings in the amount of CHF 10,000 are to be paid by
the Claimant within 30 days of notification of the present decision, to FIFA to
the following bank account with reference to case no.:
Solidarity Contribution for the Player E
(Club A, from country B / Club C, from country D)
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UBS Zurich
Account number 366.677.01U (FIFA Players’ Status)
Clearing number 230
IBAN: CH 27 0023 0230 3666 7701U
SWIFT: UBSWCHZH80A
*****
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 E
(Club A, from country B / Club C, from country D)
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