Solidarity Contribution
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 26 May 2016,
in the following composition:
Thom as Grim m (Sw itzerland), Deputy Chairman
Johan v an Gaalen (S outh Africa), member
Eirik Mons en (Norw ay ), member
Zola Perciv al Majav u (S outh Africa), member
Wouter Lam brecht (Belgium ), 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 the Player E
I.
Facts of the cas e
1.
According to the player passport issued by the Football Federation of Country B
(Football Federation of Country B), the player, Player E, born on 28 October 1984,
was registered with its affiliated club, Club A (hereafter: the Claimant), as from
19 October 1999 until 1 January 2004.
2.
The Football Federation of Country B confirmed that for the period during which
the player was registered with the Claimant, the sporting seasons ran from January
until December of the same year.
3.
On 28 October 2015, the Claimant lodged a claim in front of FIFA claiming its
proportion of the solidarity contribution in connection with the transfer of the
player from the club of Country F, Club G, to the club of Country D, Club C
(hereafter: the Respondent). In particular, the Claimant requested 2.30% of the
alleged total transfer compensation of EUR 13,000,000, corresponding to EUR
299,000, plus 5% interest as from the due date.
4.
According to the information contained in the Transfer Matching System (TMS),
the player was registered with the Respondent on 18 August 2015.
5.
Equally, according to the information contained in TMS, Club G and the
Respondent agreed upon the following: “[the Respondent] shall pay Club G as
transfer compensation for the definitive transfer of the Player the net amount
of EUR 5,430,000 […])”, payable in two instalments, EUR 2,715,000 “to be paid
immediately after player’s medical passing and after signing the employment
agreement between the Player and [the Respondent]” and EUR 2,715,000 to be
paid until 31 May 2016.
6.
Furthermore, the above-mentioned clubs agreed upon the following: “[the
Respondent] is solely and exclusively responsible for paying any solidarity
contribution which might arise pursuant to Article 21 of the FIFA Regulations on
the Status and Transfer of Players. The parties explicitly agree that a deduction
from the Transfer Fee is not permitted […]”.
7.
In its reply, the Respondent provided a copy of the transfer agreement and
stated that the transfer fee amounted to EUR 5,430,000, payable in two equal
instalments of EUR 2,715,000, the second instalment being due on 31 May 2016.
8.
Moreover, the Respondent requested official evidence which proves that the
Claimant really participated in the training of the player and, in the event the
Claimant proves its rights, the calculation shall be based on the abovementioned amount, i.e. EUR 5,430,000.
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9.
To that, the Claimant stated that it based its calculation on information from
the media since the Respondent initially did not provide a copy of the transfer
agreement. In that regard, the Claimant referred to alleged jurisprudence of the
DRC in which, due to the lack of collaboration from the Respondent, the amount
to be paid as solidarity contribution was therefore determined on the basis of
the information from the media.
10.
Moreover, the Claimant explained that in the transfer agreement the amount
for the transfer of the player was EUR 5,430,000. However, in clause 2, point 1
of the said agreement, it is stipulated that “Club G will receive that amount as a
net amount”. Consequently, the Claimant held that Club G and the Respondent
had in fact agreed upon a transfer compensation of EUR 5,701,500.
11.
Furthermore, the Claimant stated that the well-established jurisprudence of FIFA
and CAS has reasserted that the solidarity contribution is deducted from the
gross amount payable by the new club to the former club. Therefore, the
Claimant is entitled to 2.30% of the total transfer compensation paid by the
Respondent, corresponding to EUR 131,134.50 plus 5% interest p.a. as of the due
date.
12.
In its final position, the Respondent argued that the calculation made by the
Claimant is wrong. Furthermore, the Respondent asserted that the amount of
the transfer is only EUR 5,430,000, payable in two instalments, as per the transfer
agreement uploaded in the TMS. However, the transfer agreement does not
refer to any increase of the solidarity contribution.
13.
Finally, the Respondent reiterated its request regarding official evidence that
the Claimant participated in the training of the player and, if so, the amount of
solidarity contribution should be based on the transfer amount of EUR
5,430,000.
II.
Cons iderations of the Dis pute Res olution Cham ber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as DRC
or Chamber) analysed whether it was competent to deal with the case at hand.
In this respect, it took note that the present matter was submitted to FIFA on 28
October 2015. Consequently, 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 2015 edition of the Procedural Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 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
Solidarity contribution in connection with Player E, (Club A, Country B / Club C, Country D)
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2015), the Dispute Resolution Chamber is competent to deal with the matter at
stake relating to a dispute regarding the solidarity mechanism between clubs
belonging to different associations.
3.
Furthermore, the Chamber 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, it confirmed that in accordance with art. 26 par. 1 and 2
of the Regulations on the Status and Transfer of Players (edition 2015), and
considering that the player was registered with the Respondent on 18 August
2015, the 2015 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 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 DRC 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.
First of all, the DRC took note that the Claimant initially requested 2,30% of the
alleged transfer compensation of EUR 13,000,000, corresponding to EUR
299,000, as solidarity contribution from the Respondent in relation with the
transfer of the player from Club G to the Respondent.
6.
Equally, the Chamber took note of the position of the Respondent, according to
which the Claimant had not provided sufficient evidence to prove that it had
actually contributed to the training of the player. Furthermore, in case the
Claimant is able to prove its contribution to the training of the player, the
Respondent held that the solidarity contribution shall be calculated based on
the amount of the actual transfer compensation of EUR 5,430,000.
7.
Furthermore, the DRC took note of the Claimant’s replica, in which it held that
the Respondent and Club G had agreed upon a net transfer compensation of
EUR 5,430,000, resulting in a gross transfer compensation of EUR 5,701,500. In
this respect, the Claimant referred to the jurisprudence of the DRC and CAS in
similar cases according to which the gross transfer compensation should serve as
the basis for the calculation of the solidarity contribution. Consequently, the
Claimant amended its claim and held that it is entitled to the amount of EUR
131,134.50.
8.
Finally, the members of the Chamber took note of the Respondent’s duplica, in
which it reiterated its position and added that it did not agree upon any increase
of the solidarity contribution.
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9.
In view of the above, the Chamber first proceeded to analyse whether the
Claimant had sufficiently proven its contribution to the training and education
of the player. In this respect, the Chamber recalled that the Claimant had
submitted a player passport issued by the Football Federation of Country B,
according to which the player was undoubtedly registered with the Claimant as
from 19 October 1999 until 1 January 2004.
10.
In this respect, the members of the Chamber were eager to point out that, in
accordance with the DRC’s constant practice and its well-established
jurisprudence, an official player passport issued by the relevant association,
containing the relevant details of the player, including his date of birth and all
clubs with which the player was registered since the age of 12 until the date of
his registration with the respondent club (cf. art. 7 of the Regulations on the
Status and Transfer of Players), is deemed sufficient in order to establish a club’s
contribution to the training and education of a player.
11.
Consequently, the DRC held that it could be established on the basis of the
aforementioned player passport issued by the Football Federation of Country B
that the Claimant had indeed trained the player as from 19 October 1999 until
1 January 2004 and is, therefore, entitled to receive solidarity contribution from
the Respondent.
12.
At this point, the Chamber 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, in principle, 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 between the seasons of his 12th and 23rd birthday.
13.
Having established the aforementioned, the DRC deemed that the main issue in
the present dispute, considering the submissions of the parties, was to
determine whether the solidarity contribution should be calculated on the basis
of the net transfer compensation stipulated in the transfer agreement or on the
basis of a gross transfer compensation, whereby the solidarity contribution
should be added on top of the net transfer compensation.
14.
In view of the above, the DRC recalled the content of the transfer agreement
concluded by the Respondent and Club G, according to which “[the Respondent]
shall pay Club G as transfer compensation for the definitive transfer of the Player
the net amount of EUR 5,430,000 […])”, payable in two instalments, EUR
2,715,000 “to be paid immediately after player’s medical passing and after
signing the employment agreement between the Player and [the Respondent]”
and EUR 2,715,000 to be paid until 31 May 2016.
15.
Furthermore, the DRC recalled that the aforementioned clubs agreed upon the
following: “[the Respondent] is solely and exclusively responsible for paying any
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solidarity contribution which might arise pursuant to Article 21 of the FIFA
Regulations on the Status and Transfer of Players. The parties explicitly agree
that a deduction from the Transfer Fee is not permitted […]”.
16.
In this respect, the members of the Chamber observed that the transfer
agreement clearly stipulated that the transfer compensation of EUR 5,430,000 is
a “net” amount, as well as that the Respondent is exclusively responsible for the
payment of solidarity contribution, and that “a deduction from the Transfer Fee
is not permitted”.
17.
According to the members of the Chamber, under these circumstances, the
above-mentioned wording of the transfer agreement does not leave room for
an interpretation that the solidarity contribution must be deducted from the
transfer compensation stipulated in the transfer agreement. In this respect, the
Chamber pointed out that this was not disputed by the parties.
18.
Having analysed the wording of the transfer agreement at stake, the DRC
wished to underline that there is no legal obstacle which prevents the clubs from
agreeing that the new club, apart from paying the transfer compensation,
additionally bears the solidarity contribution. In this regard, the DRC reiterated
that this is indeed what the parties to the transfer agreement clearly agreed
upon. In this respect, the Chamber wished to emphasize that, as a general rule,
the relevant clause in the transfer agreement must make a clear reference to a
net amount as well as to the solidarity contribution.
19.
Furthermore, the DRC highlighted that CAS has established, in line with its
jurisprudence, that an agreement on a net transfer compensation without
deducting solidarity contribution does not contravene the spirit of the
Regulations. Equally, CAS has established that a scenario in which the solidarity
contribution is to be deducted from a gross transfer compensation does not
harm the entitlement of the training club(s) since it would rather enhance the
solidarity contribution.
20.
Having said that, the Chamber held that the agreement between Club G and
the Respondent is also covered by the wording of art. 1 of Annexe 5 of the
Regulations which, as pointed out previously, provides that 5% of any transfer
compensation shall be deducted from the total amount of the compensation
and distributed by the new club. In this respect, the CAS held that the wording
of the Regulations does not prohibit that the amount specified in a transfer
agreement represents only 95% of the gross transfer value, as long as the
solidarity contribution in the end is still deducted from the gross transfer value
and distributed in conformity with the wording of art. 1 of Annexe 5 of the
Regulations.
21.
As a consequence of the aforementioned, the Chamber concluded that the
above-mentioned provisions in the transfer agreement between Club G and the
Respondent are valid, considering the clear reference to a net amount as well as
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the explicit reference to the solidarity contribution which may not be deducted
from the transfer compensation stipulated in the transfer agreement.
Therefore, the DRC held that the gross transfer compensation shall serve as the
basis for the calculation of the solidarity contribution. In this respect, the
members of the Chamber wished to emphasize that the Claimant had explicitly
claimed solidarity contribution on the basis of the gross transfer compensation,
albeit with a slightly different calculation.
22.
In the present matter, the DRC explained that the agreement on a net transfer
compensation without deduction leads to the situation that the agreed transfer
compensation of EUR 5,430,000 constitutes only 95% of the total amount of
compensation for the transfer of the player, while the gross transfer
compensation, i.e. 100% of the total amount of compensation, is EUR
5,715,789.47 (EUR 5,430,000 / 95 x 100 = EUR 5,715,789.47).
23.
Having established the above, the DRC went on to determine which should be
the relevant amount of the solidarity contribution to be paid by the Respondent
to the Claimant.
24.
To that end, the DRC referred again to art. 1 of Annexe 5 of the 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 he was
being trained and educated by the club(s) concerned.
25.
In this respect, the members of the Chamber recalled that Club G and the
Respondent agreed upon a net transfer compensation amounting to EUR
5,430,000, which would result in a gross transfer compensation of EUR
5,715,789.47. Furthermore, the members of the Chamber pointed out that the
transfer compensation was payable in two equal instalments of EUR 2,715,000
net, resulting in two gross instalments of EUR 2,857,894.73. Furthermore, the
DRC emphasized that only the solidarity contribution based on the first
instalment of the transfer compensation was outstanding at the moment that
the decision was taken.
26.
In continuation, the DRC recalled that, according to the player passport issued
by the Football Federation of Country B, the player, born on 28 October 1984,
was registered with the Claimant as from 19 October 1999 until 1 January 2004,
corresponding to 2 months and 4 full years regarding the seasons of the player’s
15th to 19th birthdays.
In view of the foregoing, the DRC established that the Claimant was entitled to
40,83% of 5% of EUR 2,857,894.73, i.e. EUR 58,343.92.
27.
28.
In view of all the above, taking into account the claim of the Claimant, the DRC
decided that the Respondent must pay to the Claimant the amount of EUR
58,343.92 plus default interest at a rate of 5% p.a. on the said amount as of 15
September 2015 until the date of effective payment.
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29.
Lastly, the DRC referred to 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. It is further stipulated that the costs are to be borne in
consideration of the parties’ degree of success in the proceedings and, in
accordance with Annexe A of the Procedural Rules, the costs of the proceedings
are to be levied on the basis of the amount in dispute.
30.
In respect of the above, the DRC held that the amount to be taken into
consideration in the present proceedings is EUR 131,134.50 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 Annexe A of
the Procedural Rules).
31.
III.
As a result, considering the particularities of the present matter as well as the
parties’ degree of success, the DRC determined the final costs of the current
proceedings to the amount of CHF 12,000, of which the amount of CHF 6,000
shall be borne by the Claimant and the amount of CHF 6,000 shall be borne by
the Respondent.
*****
Decis ion of the Dis pute Res olution Cham ber
1.
The claim of the Claimant, Club A, is partially accepted.
2.
The Respondent, Club C, has to pay to the Claimant, w ithin 30 day s as from
the date of notification of this decision, the amount of EUR 58,343.92 plus 5%
interest p.a. on said amount as from 15 September 2015 until the date of
effective payment.
3.
In the event that the aforementioned sum plus interest is not paid by the
Respondent 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 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.
6.
The final costs of the proceedings in the amount of CHF 12,000 are to be paid
w ithin 30 day s of notification of the present decision, as follows:
6.1.
The amount of CHF 6,000 has to be paid by the Respondent.
6.2.
The amount of CHF 6,000 has to be paid by the Claimant. Given that the
Claimant has already paid the amount of CHF 5,000 as advance of costs
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at the start of the present proceedings, the additional amount of CHF
1,000 has to be paid by the Claimant to FIFA.
6.3.
The above-mentioned amounts have to be paid to FIFA to the following
bank account with reference to case no. XXXX/XX:
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 m otiv ated decis ion (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
Enclosed: CAS directives
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