Solidarity Contribution
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 28 April 2016,
in the following composition:
Geoff Thompson (England), Chairman
Santiago Nebot (Spain), member
Alejandro Maron (Argentina), 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 Player E
I.
Facts of the case
1.
According to the player’s passport issued by the Football Association of
country B, the Player E from country B (hereinafter: the player), born on 14
October 1994, was registered with its affiliated Club A (hereinafter: the
Claimant), as from 31 March 2006 until 27 January 2011.
2.
The Football Association of country B also confirmed that the sporting season
in country B follows the calendar year.
3.
According to a written confirmation of the Football Association of country D,
the player was registered with its affiliated club, Club C (hereinafter: the
Respondent), on 12 August 2014.
4.
On 29 September 2015, the Claimant contacted FIFA claiming its proportion of
the solidarity contribution in connection with the transfer of the player from
the club from country B, Club F (hereinafter: Club F), to the Respondent which,
according to the Claimant, was agreed for a transfer compensation in the
estimated amount of EUR 9,500,000. In this respect, the Claimant requested
1,476% of the total transfer compensation, as well as the payment by the
Respondent of the “attorney’s fees in the rate of 20% on the value of what
[the Respondent] has to pay to [the Claimant]”.
5.
Upon FIFA’s request, the Respondent provided a translated copy of the
relevant transfer agreement concluded between Club F and the Respondent.
6.
Pursuant to the aforementioned transfer agreement, the transfer
compensation agreed upon between Club F and the Respondent for the
transfer of the “Federative Rights” of the player amounted to EUR 1 (one
euro).
7.
In its statement of defence, the Respondent deemed that no solidarity was due
since the parties agreed upon a symbolic transfer fee of EUR 1 (one euro) for
the transfer of the sportive rights of the player. The Respondent further
alleged that Club F had already transferred the economic rights of the player
to two companies, i.e. 90% to company G and 10% to company H.
8.
Nonetheless, should any amount be due by the Respondent to the Claimant in
relation to the EUR 1 (one euro) symbolically paid for the relevant transfer of
the player, the Respondent was of the opinion that the Claimant would thus
be entitled to the sole amount of EUR 0.05 as solidarity contribution.
9.
In its replica, the Claimant rejected the Respondent’s allegations. In support of
its position, the Claimant referred to several press articles indicating that the
transfer of the player to the Respondent was the “sixth most expensive
transfer of a Center Back from a club from country B in history”. The Claimant
Solidarity contribution in connection with the Player E (Club A, country B / Club C, country D)
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also provided an interview given by the player on 24 July 2014 confirming a
transfer amount of EUR 9,500,000. The Claimant further referred to a media
statement released by Club F on its official website which acknowledged said
amount.
10.
Moreover, the Claimant underlined that the transfer of the player only
happened due to the “values” paid to Club F by the company of country D,
company G, which cannot correspond to the amount indicated in the transfer
agreement provided by the Respondent. The Claimant thus emphasised that
said transfer represented the Respondent’s attempt to circumvent FIFA
Regulations.
11.
On account of the above, the Claimant upheld its position.
12.
In its duplica, the Respondent solely reiterated its first position as to the matter
at stake.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also: the DRC or the
Chamber) analysed whether it was competent to deal with the case at hand. In
this respect, he took note that the present matter was submitted to FIFA on 29
September 2015. Consequently, the Chamber concluded that the 2015 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 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 was competent to
decide on the present matter, which concerned 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 29 September
2015 and that the player was registered with the Respondent on 12 August
2014. In view of the aforementioned, the Chamber confirmed that the 2014
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 Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. In this
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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.
5.
In this respect, the DRC noted that the Claimant claimed the payment of its
proportion of the solidarity contribution from the Respondent, corresponding
to 1.476% of the estimated transfer compensation of EUR 9,500,000.
6.
In addition to the above, and referring to art. 6 par. 3 of Annexe 3 of the
Regulations, the Chamber took into account that, according to the transfer
agreement concluded between the parties, Club F and the Respondent agreed
upon a total compensation of EUR 1 (one euro) for the transfer of the
“federative rights” of the player.
7.
Furthermore, the DRC noted that the Respondent, for its part, alleged that the
Claimant was solely entitled to EUR 0.05 as solidarity contribution, should any
amount be due by the Respondent in relation to the EUR 1 (one euro)
symbolically paid for the transfer of the federative rights of the player in
question. The DRC also observed that the Respondent further indicated that
the economic rights of the player had already been split between two
companies.
8.
In light of the above, the members of the DRC deemed relevant to underline
that the outcome of the present dispute depended on whether the
Respondent could oppose to the Claimant the fact that the parties to the
transfer agreement, i.e. Club F, the Respondent and two companies, expressly
agreed upon a transfer compensation for the transfer of the “federative
rights” of the player in the amount of EUR 1 (one euro), regardless of the
amount allegedly paid by both companies to Club F for the transfer of the
“economic rights” of the player.
9.
In this respect, the DRC referred to art. 1, Annex 5 of the Regulations,
according to which the solidarity contribution to be distributed to the
beneficiaries must be equal to 5% of any compensation not including training
compensation paid to his former club in relation with the transfer of the
player.
10.
As a consequence of the above, the Chamber found it irrelevant that the
parties to the transfer agreement had contractually decided to divide the
transfer compensation into two categories, i.e. the federative rights to the
Respondent and the economic rights to both companies. Therefore, in order to
avoid a practice that could lead to circumvent the obligation to pay solidarity
contribution, the members of the DRC decided to take into consideration the
overall value of the transfer agreement in order to determine the total
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amount paid to Club F regarding the player’s transfer to the Respondent,
irrespective of the nature of the payment and the party which proceeded with
the relevant payment.
11.
In this regard, the Chamber made reference to art. 9 par. 3 of the Procedural
Rules and emphasised that it shall take a decision upon the basis of the
documents on file.
12.
In particular, the members of the Chamber pointed to the documentation
provided by the Claimant in its submission in order to evidence that, in
addition to EUR 1 (one euro) symbolically agreed between Club F and the
Respondent, the transfer of the player was closely related to the amount of
EUR 9,500,000.
13.
In this respect, the DRC underlined that the Respondent did not clearly dispute
or submit any conclusive evidence undoubtedly contesting the amount alleged
by the Claimant as having been paid to Club F for the transfer of the player to
the Respondent.
14.
On account of the above, and bearing in mind the basic principle of burden of
proof, as stipulated in art. 12 par. 3 of the Procedural Rules, the DRC concluded
that the total transfer fee paid to Club F for the transfer of the player
amounted to EUR 9,500,001.
15.
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 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.
16.
In this respect, the Chamber recalled that the Football Association of country B
had confirmed that the player, born on 14 October 1994, was registered with
the Claimant as from 31 March 2006 until 27 January 2011.
17.
On account of the above and in accordance with art. 1 of Annexe 5 of the
Regulations, the members of the DRC considered that the Claimant is, thus,
entitled to receive solidarity contribution for the period as from 31 March 2006
until 27 January 2011, i.e. for nine months of the season of the player’s 12th
birthday, the complete seasons of the player’s 13th to 16th birthday and for one
month of the season of the player’s 17th birthday.
18.
As a result, the DRC decided to award the Claimant’s request and concluded
that the latter was entitled to 1.476% of the total transfer compensation.
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Based on a transfer compensation of EUR 9,500,001, this results in an
entitlement for the Claimant of EUR 140,220.
19.
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 disputes regarding training
compensation and the solidarity mechanism, costs in the maximum amount of
CHF 25’000 are levied. The relevant provision further stated 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).
20.
In respect of the above, and taking into account that the Claimant has been
the successful party, the Chamber concluded that the Respondent had to bear
the costs of the current proceedings in front of FIFA.
21.
Considering 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, the
Chamber held that the amount to be taken into consideration in the present
proceedings was EUR 140,220 related to the claim of the Claimant.
Consequently, the DRC concluded that the maximum amount of costs of the
proceedings corresponds to CHF 15,000 (cf. table in Annex A).
22.
Taking into account the particularities of the matter at hand, the members of
the Chamber determined the costs of the current proceedings to the amount
of CHF 14,000, 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 the amount of EUR
140,220 within 30 days as from the date of notification of this decision.
3.
In the event that the aforementioned amount is not paid within the stated
time limit, interest of 5% p.a. will fall due as of expiry of the stipulated time
limit and 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 14,000 are to be paid
by the Respondent within 30 days of notification of the present decision, to
FIFA to the following bank account with reference to case nr. XXXX:
UBS Zurich
Account number 366.677.01U (FIFA Players’ Status)
Solidarity contribution in connection with the Player E (Club A, country B / Club C, country D)
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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 remittance is to be made and to notify the
Dispute Resolution Chamber of every payment received.
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Note relating to the motivated decision (legal remedy):
According to art. 58 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
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