Solidarity Contribution
Texto da decisão
Decis ion of the s ub-com m ittee
of the Dis pute Res olution Cham ber (DRC)
passed in Zurich, Switzerland, on 7 June 2018,
in the following composition:
Geoff Thom ps on (Country H), Chairman
Roy Verm eer (Netherlands ), member
Pav el Piv ov arov (Rus s ia), 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,
Player E (hereinafter: Player E), born on 24 February 1987, was registered with its
affiliated club, Club A (hereinafter: the Claimant), as from 31 August 2006 until 30
June 2007.
2.
The football season in Country B runs from 1 July until 30 June of the following year.
3.
According to the information contained in the Transfer Matching System (TMS),
Player E was engaged out of contract free of payment from the club from country
B, Club F (hereinafter: Club F), by the club from country D, Club C (hereinafter: the
Respondent), and registered with said club from country D on 30 July 2015.
4.
Also according to the TMS, on 20 July 2015 Club F and Player E concluded a financial
agreement, conditional to the transfer of the player, Player G (hereinafter: Player
G), from the Respondent to Club F as well as to the transfer of Player E from Club F
to the Respondent. Under said financial agreement Club F undertook to pay the
following amounts to Player E:
o a collective bonus of EUR 180,000 net relating to the 2013/2014 season,
payable in instalments;
o EUR 433,366.22 net, payable in instalments; and
o a salary complement for the season 2015/2016 of EUR 475,000 net, payable
only if the player is under employment contract with the Respondent on 11
January 2016. This part is referred to as an agreement between the parties
with respect to a salary complement awarded to the player as an “incentive”
for the player’s transfer to the Respondent.
5.
Likewise, the financial agreement stipulated that “[Club F] and [the Respondent],
with the consent of [Player E], reached an agreement for the definitive transfer of
the player’s federative rights”.
6.
Equally, according to TMS, on 20 July 2015, Club F and the Respondent agreed upon
the transfer of Player G from the Respondent to Club F against the payment of a
fixed transfer compensation amounting to EUR 10,000,000 as well as a conditional
transfer fee of up to EUR 3,000,000.
7.
On 11 July 2017, the Claimant lodged a claim before FIFA claiming its proportion of
the solidarity contribution in connection with the transfer of Player E from Club F to
the Respondent. In particular, the Claimant requested 9.84% of the 5% of the
alleged transfer compensation, plus 5% interest p.a. as of the 31st day after the
Solidarity contribution in connection with the transfer of the Player E
(Club A, Country B / Club C, Country D)
2
registration of Player E with the Respondent and that the latter bear the Claimant’s
legal fees.
8.
In this context, the Claimant stated that, according to mass media articles, the links
to which it included in its claim, the transfer of Player E from Club F to the
Respondent was connected to the transfer of Player G from the Respondent to Club
F. In particular, the Claimant held that, in addition to the payment of EUR 12,000,000
by Club F to the Respondent, the transfer of Player E to the Respondent was part of
the transaction relating to the transfer of Player G from the Respondent to Club F.
9.
Furthermore, the Claimant referred to jurisprudence of the Dispute Resolution
Chamber (DRC) regarding the applicability of the solidarity mechanism provisions to
an exchange of players and the related calculation and stated that, in the present
matter, according to said jurisprudence, the amounts to be considered for the
calculation are the indemnification clause of the employment contract signed
between Player E and Club F as well as the nearest transfer of Player E to a third
club.
10.
In this respect, the Claimant argued that in January 2016 Player E was transferred
from the Respondent to the club from country H, Club J, for an alleged
compensation amounting to EUR 4,000,000.
11.
In its reply, the Respondent rejected the Claimant’s claim by stating that it acquired
Player E out of contract free of payment and that he was not a part of an exchange
of players. In this respect, the Respondent submitted the TMS report of the transfer
of Player E to the Respondent as well as a copy of FIFA’s letter relating to a solidarity
contribution claim lodged by the club from country B, Club A, for the transfer of
Player E from Club F to the Respondent, according to which Player E was transferred
out of contract free of payment, and argued that, since Player E joined the
Respondent as a “free agent”, no transfer took place and therefore, art. 21 of the
Regulations on the Status and Transfer of Players is not applicable.
12.
As to the mass media articles the Claimant referred to, the Respondent submitted
that they are inaccurate and irrelevant and that only the TMS contains the official
details of a player’s move.
13.
Lastly, the Respondent alleged that according to jurisprudence of the DRC there is
no basis for a claim when a claimant fails to provide the necessary evidence to
corroborate its allegation that a player was supposedly a part of a “cash plus player”
transfer. In this respect, the Respondent held that the Claimant failed to prove that
Player E was transferred or exchanged and that, as a result, its claim shall be rejected.
Solidarity contribution in connection with the transfer of the Player E
(Club A, Country B / Club C, Country D)
3
II.
Cons iderations of the s ub-com m ittee of the DRC
1.
First of all, the sub-committee of the Dispute Resolution Chamber (hereinafter: the
sub-committee) 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 11 July
2017. Consequently, the 2017 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 sub-committee referred to art. 3 of the Procedural Rules, which
states that the Dispute Resolution Chamber shall examine its jurisdiction in light of
arts. 22 to 24 of the Regulations on the Status and Transfer of Players. In accordance
with art. 3 of Annexe 6 in conjunction with art. 24 par. 3 and art. 22 lit. d) of the
Regulations on the Status and Transfer of Players (edition 2018), the sub-committee
is competent to decide on the present dispute relating to solidarity contribution
between clubs belonging to different associations handled through TMS.
3.
In this respect, the sub-committee was eager to emphasize that contrary to the
information contained in FIFA’s letter dated 1 June 2018, by means of which the
parties were informed of the composition of the sub-committee, the member
Wouter Lambrecht refrained from participating in the deliberations in the case at
hand due to professional circumstances. In order to comply with the prerequisite of
equal representation of club and player representatives, also the member Jon
Newman refrained from participating and thus the sub-committee adjudicated the
case in presence of three members.
4.
Furthermore, the sub-committee 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 2018), and considering
that the player was registered with the Respondent on 30 July 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.
5.
The competence of the sub-committee and the applicable regulations having been
established, the sub-committee entered into the substance of the matter. In this
respect, the sub-committee started by acknowledging all the above-mentioned facts
as well as the arguments and documentation submitted by the parties. However,
the sub-committee emphasized 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. In particular, the sub-committee recalled that
in accordance with art. 6 par. 3 of Annexe 3 of the Regulations, FIFA may use, within
the scope of proceedings pertaining to the application of the Regulations, any
documentation or evidence generated or contained in the Transfer Matching System
(TMS).
Solidarity contribution in connection with the transfer of the Player E
(Club A, Country B / Club C, Country D)
4
6.
First of all, the sub-committee noted that the Claimant lodged a claim against the
Respondent for payment of the relevant proportion of solidarity contribution in
connection with the transfer of Player E from Club F to the Respondent. In particular,
the sub-committee duly noted that the Claimant alleged that the transfer of Player
E from Club F to the Respondent was connected to the transfer of Player G from the
Respondent to Club F, namely, in addition to the payment of an alleged transfer
compensation of EUR 12,000,000 to the Respondent, Club F had allegedly agreed to
a free transfer of Player E to the Respondent in order to acquire the services of Player
G from the Respondent. According to the Claimant, such constellation constitutes
an exchange of players, thereby referring to jurisprudence of the DRC.
7.
Likewise, the sub-committee acknowledged that the Claimant held that, therefore,
the relevant value of Player E shall be calculated considering the compensation
clause of the employment contract signed between Player E and Club F as well as
the nearest transfer of Player E to a third club.
8.
The sub-committee further noticed that the Claimant, in support of its position,
referred to mass media articles, links to which only were submitted, which,
supposedly, referred to the transfer of Player E from Club F to the Respondent being
connected to the transfer of Player G in the opposite direction.
9.
In continuation, the sub-committee took due note that the Respondent rejected the
Claimant’s claim denying that Player E was part of an exchange of players. The
members of the sub-committee took note of the relevant TMS report submitted by
the Respondent, according to which it engaged Player E out of contract free of
payment. The sub-committee further noted the Respondent’s argument that, as a
result of the player being a “free agent”, no solidarity contribution is due.
10.
In light of the foregoing, the sub-committee deemed that it had to establish as to
whether an obligation to distribute a proportion of the solidarity contribution had
arisen out of the transfer of Player E from Club F to the Respondent.
11.
In this respect, and first of all, the sub-committee made reference to art. 21 of the
Regulations, according to which any club that has contributed to the education and
training of a player shall receive a proportion of the compensation paid to the
player’s former club.
12.
Consequently, the sub-committee went on to examine as to whether compensation
was in fact paid in connection with the transfer of Player E from his former club,
Club F, to the Respondent.
13.
The sub-committee firstly recalled the principle of the burden of proof, as
established in art. 12 par. 3 of the Procedural Rules, according to which any party
claiming a right on the basis of an alleged fact shall carry the burden of proof.
Solidarity contribution in connection with the transfer of the Player E
(Club A, Country B / Club C, Country D)
5
Accordingly, the sub-committee determined that the Claimant carried the relevant
burden of proof.
14.
Bearing in mind the aforementioned, the sub-committee went on to examine the
documentation available to it. In this respect, the sub-committee stressed that,
according to the information and documentation entered in TMS on the occasion
of the transfer of Player E from Club F to the Respondent, which is reflected in the
TMS report presented by the Respondent, the latter engaged Player E out of
contract free of payment. Likewise, the sub-committee noted that the Respondent
uploaded in TMS the aforementioned financial agreement signed between Club F
and Player E as the proof of last contract end date. Furthermore, according to the
relevant TMS report, the player mutually agreed an early termination with his
former club, i.e. Club F.
15.
Having said that, the sub-committee turned its attention to the Claimant’s
allegation that Player E was part of the transfer transaction reached between Club
F and the Respondent regarding Player G and that, in such framework, Player E
allegedly was attributed an economic value, allegedly resulting in the Respondent’s
obligation to pay solidarity contribution.
16.
In this context, the sub-committee took into account that Club F and Player E
mutually agreed upon the termination of their employment relationship. Similarly,
the sub-committee pointed out that the transfer agreement signed by and between
Club F and the Respondent relating to the transfer of Player G from the Respondent
to Club F, which is available in TMS, does not contain any reference to Player E.
17.
Having established the above, the sub-committee acknowledged that a transfer
contract, which deals with a mutual exchange of obligations between the
contractual parties involved, can, inter alia, involve the payment of a fee or indeed
be in the form of an exchange of players. However, the sub-committee considered
that, in the matter at hand, no such mutual exchange of obligations with respect to
Player E had been agreed upon by and between Club F and the Respondent. Indeed,
Player E was engaged by the Respondent out of contract free of payment and the
transfer agreement relating to Player G does not include any obligation relating to
Player E. What is more, the sub-committee agreed that the links to mass media
articles presented by the Claimant cannot be considered sufficient evidence
corroborating the Claimant’s allegations.
18.
As a consequence of the aforementioned, the sub-committee concluded that the
transfers of the players Player E and Player G were two separate transfers and, thus,
had to reject the Claimant’s allegation that Player E was part of the transfer
transaction reached between Club F and the Respondent regarding Player G.
19.
Consequently, and with reference to art. 21 of the Regulations, the sub-committee
held that there was no basis for the Claimant’s claim for solidarity contribution
Solidarity contribution in connection with the transfer of the Player E
(Club A, Country B / Club C, Country D)
6
against the Respondent in relation with Player E, and, therefore, decided to reject
the Claimant’s claim.
20.
Lastly, the sub-committee referred to art. 25 par. 2 of the Regulations as well as 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.
21.
In respect of the above, the sub-committee held that the amount to be taken into
consideration in the present proceedings related to the claim of the Claimant does
not exceed CHF 50,000. Consequently, the sub-committee concluded that the
maximum amount of costs of the proceedings corresponds to CHF 5,000 (cf. table in
Annexe A of the Procedural Rules).
22.
As a result, considering the parties’ degree of success, the sub-committee
determined the final costs of the current proceedings to the amount of CHF 4,000
which shall be borne by the Claimant.
*****
III.
Decis ion of the s ub-com m ittee of the DRC
1.
The claim of the Claimant, Club A, is rejected.
2.
The final costs of the proceedings in the amount of CHF 4,000 are to be paid by the
Claimant, w ithin 30 day s of notification of the present decision to FIFA to the
following bank account with reference to case no. XXXXXXX:
UBS Zurich
Account number 366.677.01U (FIFA Players’ Status)
Clearing number 230
IBAN: CH 27 0023 0230 3666 7701U
SWIFT: UBSWCHZH80A
*****
Solidarity contribution in connection with the transfer of the Player E
(Club A, Country B / Club C, Country D)
7
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 sub-committee of the DRC:
Omar Ongaro
Football Regulatory Director
Encl.: CAS directives
Solidarity contribution in connection with the transfer of the Player E
(Club A, Country B / Club C, Country D)
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