Solidarity Contribution
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 26 May 2016,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
Johan van Gaalen (South Africa), member
Eirik Monsen (Norway), member
Zola Percival Majavu (South Africa), member
Wouter Lambrecht (Belgium), member
on the claim presented by the club,
P, country N
as Claimant
against the club,
S, country E
as Respondent
regarding solidarity contribution in connection with the transfer
of the player P
I.
Facts of the case
1.
According to the player passport issued by the Football Federation of N (FFN), the
player, P (hereinafter: the player P), born on 15 July 1981, was registered with the
club from N, P (hereinafter: the Claimant), as from 10 January 1998 until 30 June
1999.
2.
The FFN confirmed that P is an affiliate member of the FFN and participates in
competitions organized by the FFN since the season 1994/1995.
3.
Furthermore, the FFN confirmed that the sporting season in Nigeria during the time
that the player P was registered with the Claimant ran as from 1 January until 31
December.
4.
According to the information contained in the Transfer Matching System (TMS), the
player P was registered with the club from E, S (hereinafter: the Respondent), on 28
January 2014.
5.
On 25 December 2015, the Claimant lodged a claim in front of FIFA against the
Respondent, claiming its proportion of solidarity contribution for the transfer of the
player P from the club, C (hereinafter: C), to the Respondent. In particular, the
Claimant claimed 14,68% out of the 5% share of solidarity contribution.
6.
In support of its claim, the Claimant stated that the player P was transferred from C
to the Respondent in January 2014. The Claimant argued that C had, in return for
the transfer of the player P to the Respondent, obtained the services of the player
K (hereinafter: the player K from the Respondent.
7.
The Claimant further indicated that, based on the information it had at disposal,
there was no transfer compensation paid by the Respondent to C, but that the
player P was exchanged with the player K. In this respect, the Claimant argued that
the fact that no transfer compensation was paid for the player P would not mean
that this transfer did not have an economic value.
8.
As to the calculation of the relevant solidarity contribution and the market value of
the transfer of the player P, the Claimant referred to the jurisprudence of the DRC
in cases regarding an exchange of players and held that the best approach was to
base the calculation on the average of the amount paid by C to the player’s former
club, the club W (hereinafter: W) for the player P and the amount paid by the
Respondent to the club, Z (hereinafter: Z), for the player K. In this regard, the
Claimant explained that it was informed by FIFA in a separate case regarding
solidarity contribution that the player P had previously been transferred from W to
C for a transfer compensation of XXX 2,450,000, i.e. a fixed transfer compensation
of XXX 2,250,000 and some conditional payments totaling XXX 200,000. Equally,
Solidarity contribution in connection with the player P
(Club P, country N / Club S, country E)
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according to the Claimant, the transfer of the player K from Z to the Respondent
amounted to XXX 6,790,000.
9.
As a result, the Claimant deemed the amount of XXX 4,620,000 to be the relevant
figure to calculate the solidarity contribution. Consequently, the Claimant claimed
payment of 14,68% out of the 5% share of solidarity contribution based on said
amount, i.e. an amount of XXX 33,910.80 plus 5% interest p.a.
10.
In its response, the Respondent rejected the claim lodged against it and stated that
“the transaction was merely a legitimate exchange of registrations – no value
attached to either player”. Furthermore, the Respondent held that said transaction
is a “purely domestic transfer with no monetary exchange between clubs” and,
therefore, no solidarity payments are due. The Respondent argued that “[the
Respondent] and C were at the time of the transfer both in membership of an
competition – xxxxx League”. Finally, the Respondent stated that it concerned an
“exchange of players whose contracts were onerous for their respective clubs and
who were therefore effectively of negative value to their clubs”.
11.
According to the information contained in TMS, C and the Respondent concluded
a transfer agreement on 27 January 2014 which stipulated, inter alia, the following:
“1. It is hereby agreed that [the Respondent] shall transfer the registration of
player K to C with immediate effect on the terms set out herein. At the same time
C shall transfer the registration of player P to [the Respondent] with immediate
effect on the terms set out herein.
2. In consideration of the transfer of the registration of both players no
compensation fee will be payable either by [the Respondent] to C in respect of
player P or by C to [the Respondent] in respect of player K.”
12.
Furthermore, the transfer agreement regarding the transfer of the player from W
to C provides for an unconditional transfer compensation of XXX 2,250,000 as well
as various conditional payments up to an additional amount of XXX 1,500,000.
II.
Considerations of the Dispute Resolution Chamber
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 25 December
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.
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22 lit. (d) of the Regulations on the Status and Transfer of Players (edition 2015),
the Dispute Resolution Chamber is in principle competent to deal with the matter
at stake relating to a dispute regarding the solidarity mechanism between clubs
belonging to different associations.
3.
In this respect, the Chamber took note of the Respondent’s argument that it
concerned a purely domestic transfer since both the Respondent and C were at the
time of the transfer in membership of an competition – xxxxxx League. In this
regard, the Chamber pointed out that, for disputes regarding solidarity
contribution, its competence is given as long as the transfer at the basis of the
dispute is between clubs belonging to different associations, and that the fact that
the Respondent and C are both members of xxxxx League is irrelevant.
Consequently, the argument of the Respondent has to be rejected and the Chamber
is competent to deal with the present matter.
4.
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 (editions 2012, 2014 and 2015),
and considering that the player was registered with the Respondent on 28 January
2014, the 2012 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.
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 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.
6.
First of all, the Chamber referred to the information and documentation entered in
TMS on the occasion of the player P’s transfer from C to the Respondent. In this
regard, the Chamber noted that the transfer agreement at the basis of the present
dispute provided the exchange of the player P, who was at the time registered with
C, for the player K, who was at the time registered with the Respondent. Moreover,
the two clubs expressly agreed in art. 2 of the said agreement that “In consideration
of the transfer of the registration of both players no compensation fee will be
payable either by [the Respondent] to C in respect of [player P] or by C to [the
Respondent] in respect of [player K]”.
7.
What is more, the Chamber observed that the Claimant asserted that it was entitled
to receive solidarity contribution from the Respondent on the basis of the exchange
of the players K and P between C and the Respondent, as such exchange did
undoubtedly have an economic value.
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(Club P, country N / Club S, country E)
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8.
Equally, the Chamber took note of the position of the Respondent, according to
which, since the transfer of the two players concerned did not involve any monetary
exchange between clubs, no solidarity contribution was due to the Claimant.
9.
In view of the above, the Chamber proceeded to analyse whether the transfer of
the player P from C to the Respondent and the respective agreement signed
between the latter two clubs on that occasion did give rise to the payment of
solidarity contribution.
10.
In this context and with regard to the position of the Respondent, the Chamber
outlined that, as a general principle, any transfer contract represents a bilateral
agreement, which implies a mutual exchange of obligations between the parties
involved. In the matter at hand, the parties to the transfer contract agreed upon
the “transfer of registration” of two players. In this regard, the Chamber was of the
opinion that the simultaneous “transfer of registration” of both players can only be
seen, de facto, as an exchange of the two players between the two clubs concerned
and corresponds to a mutual exchange of obligations. Indeed, the Chamber was
convinced that, had the player K’s registration not been simultaneously transferred
to C, the Respondent could not have secured the transfer of the player P.
11.
As a consequence of the aforementioned, the Chamber concluded that the present
transaction is to be considered as an exchange of players. Furthermore, the
Chamber, relying on its existing jurisprudence in similar matters, established that an
exchange of players implies indirectly a financial agreement, in view of the fact that
the sporting qualities of the players have an economic value in the football
employment market.
12.
Moreover, the Chamber referred in particular to art. 1 of Annexe 5 of the
Regulations, and more specifically to the interpretation to be given to the said
article and to the solidarity mechanism in general. In this respect, the Chamber
underlined that the aforementioned article should be interpreted according to its
overall aim. In this respect, the Chamber underlined that the solidarity mechanism
is meant to foster the training of young players by awarding a contribution that
will be distributed to all clubs that have trained the player throughout his entire
sporting activity.
13.
In light of the aforementioned, the Chamber was of the unanimous opinion that
the provisions regarding the solidarity mechanism also apply to an exchange of
players, and that, thus, the provisions regarding the solidarity mechanism cannot
be circumvented by means of an exchange of players. Indeed, the Chamber was of
the opinion that in order to obtain the services of the player P, the Respondent
“remunerated” C, his former club, by offering C to obtain the services of the player
K.
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14.
In view of the above, the Chamber came to the conclusion that solidarity
contribution is due in the context of the exchange of the players P and K and that
the Respondent, who acquired the services of the player P, is responsible for the
payment of such solidarity contribution to the clubs who trained the said player. In
this regard, the Chamber recalled that, given the information on file, it is
undeniable that the Claimant trained the player and that therefore it is entitled to
receive solidarity contribution.
15.
The aforementioned having been established, the members of the Chamber
underlined that the next issue of the present matter was to determine the value to
be attributed to the exchange of players, in the current matter, for the transfer of
the player P to the Respondent.
16.
In this respect, the members of the Chamber took note of the transfer compensation
paid by C to W for the transfer of the player P, according to the information in TMS,
as well as the respective confirmation from C, according to which C paid W the total
amount of XXX 2,450,000. Equally, the Chamber took into account the transfer
compensation paid by the Respondent to Z for the transfer of the player K, which,
according to the Claimant, amounted to XXX 6,790,000. With regard to the latter
amount, the Chamber emphasized that it was not contested by the Respondent.
The Chamber thus established that these two amounts shall serve as basis of the
Claimant’s assessed transfer value.
17.
In continuation, the Chamber held the view that the average between the transfer
compensation paid for the transfer of the player P to the C (XXX 2,450,000) and the
transfer compensation paid for the transfer of the player K to the Respondent (XXX
6,790,000) is the most accurate value of the acquisition by the Respondent of the
services of the player P. The Chamber thus calculated that the value of the player’s
transfer equals XXX 4,620,000 (XXX 9,240,000 : 2 = XXX 4,620,000).
18.
Having established the above, the DRC 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.
19.
Subsequently, 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.
20.
To that end, the DRC referred 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
Solidarity contribution in connection with the player P
(Club P, country N / Club S, country E)
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into consideration the age of the player at the time he was being trained and
educated by the club(s) concerned.
21.
In this respect, the DRC recalled that, according to the player passport issued by the
FFN, the player P, born on 15 July 1981, was registered with the Claimant as from
10 January 1998 until 30 June 1999.
22.
In view of all the above, taking into account the claimed percentage by the
Claimant, the DRC decided that the Respondent must pay to the Claimant the
amount of XXX 33,910.80 plus default interest at a rate of 5% p.a. on the said
amount as of 25 December 2015 until the date of effective payment.
23.
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.
24.
In respect of the above, the DRC held that the amount to be taken into
consideration in the present proceedings is XXX 33,910.80 related to the claim of
the Claimant. Consequently, the DRC concluded that the maximum amount of costs
of the proceedings corresponds to CHF 5,000 (cf. table in Annexe A of the Procedural
Rules).
25.
As a result, considering the parties’ degree of success, the DRC determined the final
costs of the current proceedings to the amount of CHF 3,000 which shall be borne
by the Respondent.
*****
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, P, is accepted.
2.
The Respondent, S, has to pay to the Claimant, within 30 days as from the date of
notification of this decision, the amount of XXX 33,910.80 plus 5% interest p.a. on
said amount as from 25 December 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.
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4.
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.
5.
The final costs of the proceedings in the amount of CHF 3,000 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 no.:
UBS Zurich
Account number 366.677.01U (FIFA Players’ Status)
Clearing number 230
IBAN: CH27 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:
Marco Villiger
Deputy Secretary General
Enclosed: CAS directives
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