Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 24 April 2015,
by Mr Philippe Diallo (France), DRC judge,
on the claim presented by the club,
Player A, from country B
as Claimant
against the club,
Club C, from country B
as Respondent
regarding solidarity contribution in connection with the transfer
of the Player D
I.
Facts of the case
1.
According to the player’s passport issued by the Football Federation from
country B, the Player D (hereinafter: the player), born on 2 May 1990, was
registered with the club from country B, Player A (hereinafter: the Claimant),
as from 9 September 2009 until 30 June 2011 as a professional.
2.
The football season in country B during the time the player was registered
with Maritimo ran from 1 July until 30 June of the following year.
3.
The Football Federation from country B further informed FIFA that the player
was registered with its affiliated club, Club C (hereinafter: the Respondent), on
29 July 2011.
4.
According to the information contained in the Transfer Matching System
(TMS), the club from country E, Club F and the Respondent agreed upon the
payment of transfer compensation in the amount of EUR 1,680,000, payable in
two instalments of EUR 840,000 each, on 5 July 2011 and 31 December 2011,
respectively, in exchange for “the sale of 35% of the [player]’s Economic Rights
(…).”
5.
On 2 January 2013, 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, requesting payment of the amount of EUR 60,362.86 plus
interest at a rate of 5% p.a. “as of the due date of the relevant payment.”
6.
In support of its claim, the Claimant argued that the amount of EUR 1,680,000
was paid solely in order to purchase 30% of the rights pertaining to the player,
as it can be seen from the transfer agreement. However, the Claimant further
pointed to a financial statement published by the Respondent for the third
quarter of 2011 where an amount of EUR 4,225,400 is stipulated in connection
with the purchase of 70% of the rights pertaining to the player by the
Respondent. In this regard, the Claimant provided an excerpt of the
Respondent’s financial statements for the period of the third quarter of 2011.
Taking into account the above, the Claimant concluded that the actual amount
which was paid in connection with the transfer of the player and which has to
be taken into account when calculating solidarity contribution, is EUR
6,036,285.71, built up as follows: EUR 4,225,400 / 70 * 100.
7.
In its reply, the Respondent held that according to the transfer agreement it
concluded with Club F, the latter club was not only contractually responsible to
make the relevant solidarity contribution payments to the Claimant, but was
also willing to make the relevant payments upon receipt of the Claimant’s
bank details.
Solidarity contribution in connection with the player D
(Club A, from country B / Club C, from country B)
2/8
8.
On 27 November 2013, the Respondent informed FIFA that Club F paid the
amount of EUR 15,221 to the Claimant and provided the relevant proof of
payment in this regard.
9.
In its final position, the Claimant first emphasized that its claim was for the
amount of EUR 60,362.86 whereas it only received the amount of EUR 15,221
from Club F. Moreover, the Claimant stressed that in accordance with the
jurisprudence of the DRC, the new club of the player is responsible for
distributing the relevant amount of solidarity contribution to the former clubs
of the player. Therefore, the Claimant argued that the Respondent is still
responsible to make the outstanding payments to it.
II.
Considerations of the DRC judge
1.
First of all, the Dispute Resolution Chamber (DRC) judge (hereinafter also
referred to as: the DRC judge) analysed which Procedural Rules were applicable
to the matter at hand. In this respect, he referred to art. 21 of the Rules
Governing the 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 2 January 2013, thus after 1
December 2012. Therefore, the DRC judge concluded that the 2012 edition of
the Procedural Rules is applicable to the matter at hand.
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. iii. in connection with art. 22 lit.
d) of the Regulations on the Status and Transfer of Players (edition 2015), the
DRC judge is competent to decide on the present matter relating to the
solidarity mechanism between clubs belonging to different associations.
3.
Furthermore, the DRC judge 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, he referred, on the one hand, to art. 26 par. 1 and
2 of the Regulations on the Status and Transfer of Players (edition 2010,
2012, 2014 and 2015) and, on the other hand, to the fact that the present
claim was lodged on 2 January 2013 and that the player was registered with
the Respondent on 29 July 2011. In view of the aforementioned, the DRC
judge concluded 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.
Solidarity contribution in connection with the player D
(Club A, from country B / Club C, from country B)
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4.
The competence of the DRC judge and the applicable regulations having
been established, the DRC judge entered into the substance of the matter.
The DRC judge started by acknowledging the facts of the case as well as the
documentation on file. However, the DRC judge emphasized 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.
5.
In this respect, the DRC judge noted that the Claimant claimed the payment
of the amount of EUR 60,362.86 as solidarity contribution from the
Respondent, plus interest of 5% p.a. as of the due date of the relevant
payment.
6.
In addition to the above, the DRC judge took into account the undisputed
fact that the Claimant already received the amount of EUR 15,221 from Club
F.
7.
Moreover, the DRC judge recalled that according to the information
contained in the Transfer Matching System, Club F and the Respondent
agreed upon the payment of transfer compensation in the amount of EUR
1,680,000, payable in two instalments of EUR 840,000 each, payable on 5 July
2011 and 31 December 2011, respectively, in exchange for “the sale of 35%
of the [player]’s Economic Rights (…).
8.
In this regard, the DRC judge further noted the argument of the Claimant
according to which the amount of EUR 1,680,000 was paid solely in order to
purchase 30% of the rights pertaining to the player, whereas according to a
financial statement published by the Respondent for the third quarter of
2011, the further amount of EUR 4,225,400 is stipulated for 70% of the rights
pertaining to the player. The DRC judge therefore noted that the Claimant
hence concluded that the actual amount which was paid in connection with
the transfer of the player and which has to be taken into account when
calculating solidarity contribution, is EUR 6,036,285.71, built up as follows:
EUR 4,225,400 / 70 * 100.
9.
Furthermore, the DRC judge duly noted that the Respondent never objected
to the amount that was claimed by the Claimant. In this regard, the DRC
judge noted that the Respondent only pointed to the fact that, due to the
transfer agreement which was concluded between it and the club from
country E, Club F, the latter club is contractually responsible to make the
relevant solidarity contribution, and that, in fact, Club F was willing to make
the relevant payments to the Claimant nonetheless. Moreover, the DRC judge
noted that it was the club from country E, Club F which made the partial
Solidarity contribution in connection with the player D
(Club A, from country B / Club C, from country B)
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payment of EUR 15,221 to the Claimant, whereas the Respondent did not
provide any comments as to the residual amount which was claimed by the
Claimant.
10.
As a consequence of the aforementioned consideration, the DRC judge
established that, in accordance with art. 9 par. 3 of the Procedural Rules, he
shall take a decision upon the basis of the documents already on file.
11.
Having established the above, the DRC judge referred to art. 21 of the
Regulations 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 in proportion of the number of
years the player has been registered with the relevant club(s) between the
seasons of his 12th and 23rd birthday.
12.
In this respect, the DRC judge recalled that the Football Federation from
country B had confirmed that the player, born on 2 May 1990, was registered
with the Claimant as from 9 September 2009 until 30 June 2011.
13.
On account of the above and in accordance with art. 1 of Annexe 5 of the
Regulations, the DRC judge considered that the Claimant is, thus, entitled to
receive solidarity contribution for the period as from 9 September 2009 until
30 June 2011, i.e. for 10 months of the season of the player’s 20th birthday
and for 12 months of the season of the player’s 21st birthday.
14.
Furthermore, as to the calculation of the solidarity contribution, the DRC judge
established that, in accordance with the breakdown provided for in art. 1 of
Annexe 5 of the Regulations, the Claimant is entitled to receive 18,33% of 5% of
the compensation paid by the Respondent to Club F. As to the question of which
amount has to be taken into account when calculating the relevant amount of
solidarity contribution, the DRC judge formed the belief that it is the amount of
EUR 6,036,285.74 based on which solidarity contribution should be calculated,
given that said amount was adequately substantiated by the Claimant and was
subsequently not disputed by the Respondent.
15.
Consequently, the DRC judge decided that the Respondent has to pay to the
Claimant 18,33% of 5% of EUR 6,036,285.74, i.e. the amount of EUR 55,322.51.
Given that the Claimant already received the amount of EUR 15,221 from Club F
in connection with the transfer in question, the DRC judge concluded that the
Respondent only has to pay the further amount of EUR 40,101.55 to the
Claimant.
Solidarity contribution in connection with the player D
(Club A, from country B / Club C, from country B)
5/8
16.
Furthermore, and taking into consideration both the claim of the Claimant as
well as art. 2 par. 1 of Annexe 5 of the Regulations, the DRC judge decided
that the Respondent has to pay, in conformity with the longstanding practice
of the DRC, interest at rate of 5% p.a. as follows:
5% p.a. on the amount of EUR 840,000 as from 5 August 2011 until the
date of effective payment;
5% p.a. on the amount of EUR 840,000 as from 31 January 2012 until
the date of effective payment;
5% p.a. on the amount of EUR 50,000 as from 2 January 2013 until the
date of effective payment.
17.
In view of all of the above, again recalling that the Claimant initially
requested the amount of EUR 60,352.86 from the Respondent, the DRC judge
decided to partially accept the claim of the Claimant.
18.
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).
19.
In respect of the above, and taking into account that the claim of the
Claimant has been almost completely accepted, the DRC judge concluded
that the Respondent has to bear the costs of the current proceedings in front
of FIFA.
20.
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.
21.
On that basis, the DRC judge held that the amount to be taken into
consideration in the present proceedings is EUR 60,352.86 related to the
claim of the Claimant. Consequently, the DRC judge concluded that the
maximum amount of costs of the proceedings corresponds to CHF 10,000 (cf.
table in Annexe A).
Solidarity contribution in connection with the player D
(Club A, from country B / Club C, from country B)
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22.
Considering that the case at hand did not compose any complex factual or
legal issues and that it was adjudicated by the DRC judge and not by the DRC,
the DRC judge determined the costs of the current proceedings to the amount
of CHF 5,000.
*****
III.
Decision of the DRC judge
1.
The claim of the Claimant, Player 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 EUR 40,101.55 plus 5%
interest until the date of effective payment as follows:
a) 5% p.a. on the amount of EUR 5,582.13 as from 5 August 2011;
b) 5% p.a. on the amount of EUR 5,582.13 as from 31 January 2012;
c) 5% p.a. on the amount of EUR 28,937.27 as from 2 January 2013.
3.
In the event that the aforementioned amount 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 5,000 are to be paid
by the Respondent within 30 days of notification of the present decision, as
follows:
a)
The amount of CHF 2,000 to the Claimant.
b)
The amount of CHF 3,000 to FIFA to the following bank account with
reference to case no.:
Solidarity contribution in connection with the player D
(Club A, from country B / Club C, from country B)
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UBS Zurich
Account number 366.677.01U (FIFA Players’ Status)
Clearing number 230
IBAN: CH27 0023 0230 3666 7701U
SWIFT: UBSWCHZH80A
6.
The Claimant is directed to inform the Respondent immediately and directly
of the account number to which the remittances under point 2 and 5.a) are
to be made and to notify the DRC judge of every payment received.
Note relating to the motivated decision (legal remedy):
According to art. 63 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 DRC judge:
________________________
Markus Kattner
Deputy Secretary General
Enclosed: CAS directives
Solidarity contribution in connection with the player D
(Club A, from country B / Club C, from country B)
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