Solidarity Contribution
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 2 July 2015,
in the following composition:
Geoff Thompson (England), Chairman
Theodore Giannikos (Greece), member
Joaquim Evangelista (Portugal), member
on the claim presented by the club,
Club A, Country B,
as Claimant
against the club,
Club C, Country D
as Respondent
regarding a solidarity contribution dispute related to
the transfer of the Player E
I.
Facts of the case
1.
According to the player passport issued by the Football Association of Country B,
the Player of Country B, Player E (hereinafter: the player), born on 3 April 1991, was
registered with its affiliated club, Club A (hereinafter: the Claimant), as from 2
March 2006 until 20 January 2009 as an amateur and as of 21 January 2009 until 4
January 2011 as a professional.
2.
The relevant sporting seasons in Country B ran as follows:
- for amateurs from January to December of the relevant year;
- for professionals from 1 August until 31 July of the following year.
3.
According to the Football Federation of Country D, the player was registered with
its affiliated club, Club C (hereinafter: the Respondent), on 31 January 2011.
4.
According to the information contained in the Transfer Matching System (TMS), on
30 January 2011, the Respondent and Club F agreed upon a compensation of EUR
4,000,000 for the transfer of the player payable by the Respondent as follows:
- EUR 1,000,000 “after the release of ITC and after medical pass certificate as
professional football player according to Sport Legislation of Country D”;
- EUR 1,000,000 no later than 15 September 2011;
- EUR 1,000,000 no later than 15 April 2012;
- EUR 1,000,000 no later than 30 August 2012.
5.
On 26 December 2012, 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. In particular, the Claimant requested 2.875% of the total transfer
compensation, plus 5% interest as of the 31st day following the player’s registration
with the Respondent. In addition, the Claimant requested FIFA to order the
Respondent to pay the amount of EUR 25,000 for the delay in payment.
6.
After the closure of the investigation, the Respondent explained that it reached a
settlement agreement with Club F by means of which both parties agreed that the
transfer compensation would be reduced to EUR 2,500,000.
7.
In addition, the Respondent alleges that it has already paid EUR 22,541.32 as
solidarity contribution to the Claimant.
8.
In its response to the Respondent’s comments, the Claimant recalls that solidarity
contribution falls due 30 days after the player’s registration or in case of contingent
payments, 30 days after the date of such payments. In this regard, the Claimant
sustains that the settlement agreement was reached after its right to receive
solidarity contribution arose and therefore cannot affect the latter right. In
Distribution of the Solidarity Contribution for the Player E
(Club A, Country B / Club C, Country D)
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addition, the Claimant outlines that the Respondent failed to submit evidence
regarding the aforementioned settlement agreement.
9.
In continuation, the Claimant acknowledges receipt of the payment of EUR
22,541.32 corresponding to part of the solidarity contribution due out of the first
instalment of EUR 1,000,000.
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, the Chamber took note that the present matter was submitted to FIFA on
26 December 2012. Consequently, the 2012 edition of the Rules governing the
procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(hereinafter: 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 is competent to decide on the present
matter, which concerns 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 26 December 2012 and that
the player was registered with the Respondent on 31 January 2011. In view of the
aforementioned, the Chamber confirmed that the 2010 edition of the Regulations
on the Status and Transfer of Players (hereinafter: 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 DRC entered into the substance of the matter. In this 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 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.
Distribution of the Solidarity Contribution for the Player E
(Club A, Country B / Club C, Country D)
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5.
In this respect, the DRC noted that the Claimant claimed 2.875% of the total
transfer compensation paid by the Respondent to Club F, as solidarity contribution.
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 information
contained in the TMS, the Respondent and Club F agreed upon a compensation of
EUR 4,000,000 for the transfer of the player payable by the Respondent as follows:
- EUR 1,000,000 “after the release of ITC and after medical pass certificate as
professional football player according to Sport Legislation of Country D”;
- EUR 1,000,000 no later than 15 September 2011;
- EUR 1,000,000 no later than 15 April 2012;
- EUR 1,000,000 no later than 30 August 2012.
7.
Furthermore, the DRC noted that the Respondent asserts that it reached a
settlement agreement with Club F by means of which both parties agreed that the
transfer compensation would be reduced to EUR 2,500,000. In this regard, the
members of the DRC referred to the content of 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 and outlined that the Respondent did not present any
evidence confirming that said settlement agreement was actually reached. In view
of the above, and considering that the Respondent failed to carry the burden of
proof, the Chamber held that the amount of EUR 4,000,000 stipulated in the
transfer agreement concluded on 30 January 2011 should be taken into
consideration in order to determine the amount due as solidarity contribution.
8.
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 between the seasons
of his 12th and 23rd birthday.
9.
In addition to the above, the DRC recalled that the Football Association of Country
B had confirmed that the player, born on 3 April 1991, was registered with the
Claimant as of 2 March 2006 until 20 January 2009 as an amateur and as of 21
January 2009 until 4 January 2011 as a professional.
10.
In addition, the DRC noted that the Claimant acknowledged having received a
payment of EUR 22,541.32 as solidarity contribution from the Respondent.
Distribution of the Solidarity Contribution for the Player E
(Club A, Country B / Club C, Country D)
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11.
On account of the above and in accordance with art. 1 of Annexe 5 of the
Regulations, the DRC considered that the Claimant is, thus, entitled to receive
solidarity contribution for the period as from 2 March 2006 until 4 January 2011. In
terms of the percentage of the 5% solidarity contribution, the DRC calculated that,
on a pro rata basis, this corresponds to 48.32% of 5%.
12.
In view of all of the above, and considering the payment of EUR 22,541.32, the DRC
decided to partially accept the claim of the Claimant and held that the Respondent
is liable to pay the amount of EUR 74,098.68 to the Claimant as solidarity
contribution in relation to the transfer of the player from Club F to the Respondent.
13.
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 decided that the Respondent has
to pay, in conformity with the longstanding and well-established jurisprudence of the
DRC, interest at rate of 5% p.a. as follows:
a.
b.
c.
d.
5% p.a. as of 18 March 2011 on the amount of EUR 1,618.68;
5% p.a. as of 16 October 2011 on the amount of EUR 24,160;
5% p.a. as of 16 May 2012 on the amount of EUR 24,160;
5% p.a. as of 30 September 2012 on the amount of EUR 24,160.
14.
In continuation, the deciding authority referred to art. 25 par. 2 of the Regulations
in combination with art. 18 par. 1 of the Procedural Rules, according to which in the
proceedings before the Dispute Resolution Chamber relating to disputes regarding
solidarity mechanism costs in the maximum amount of CHF 25,000 are levied. The
costs are to be borne in consideration of the parties’ degree of success in the
proceedings.
15.
In this respect, the Chamber reiterated that the claim of the Claimant is partially
accepted and established that the Respondent has to bear the costs of the current
proceedings in front of FIFA.
16.
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.
17.
The amount in dispute to be taken into consideration in the present proceedings
amounts to EUR 115,000 related to the claim of the Claimant. Therefore, the DRC
concluded that the maximum amount of costs of the proceedings corresponds to
CHF 15,000 (cf. table in Annexe A).
18.
As a result, and taking into account the particularities of the present matter, the
complexity of the case as well as the degree of success, the DRC determined the
costs of the current proceedings to the amount of CHF 12,000, which shall be borne
by the Respondent.
Distribution of the Solidarity Contribution for the Player E
(Club A, Country B / Club C, Country D)
5/7
19.
The Dispute Resolution Chamber concluded its deliberations in the present matter
by establishing that any further claim lodged by the Claimant is rejected.
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, within 30 days as from the date
of notification of this decision, the amount of EUR 74,098.68 plus 5% interest p.a.
until the date of effective payment as follows:
a.
b.
c.
d.
5% p.a. as of 18 March 2011 on the amount of EUR 1,618.68;
5% p.a. as of 16 October 2011 on the amount of EUR 24,160;
5% p.a. as of 16 May 2012 on the amount of EUR 24,160;
5% p.a. as of 30 September 2012 on the amount of EUR 24,160.
3. In the event that the amount plus interest due to the Claimant in accordance with the
above-mentioned point 2 is not paid by the Respondent within the stated time limit,
the present matter shall be submitted, upon request, to the FIFA 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 12,000 are to be paid by the
Respondent, within 30 days as from the date of notification of the present decision,
as follows:
5.1. The amount of CHF 9,000 has to be paid to FIFA to the following bank
account:
UBS Zurich
Account number 366.677.01U (FIFA Players’ Status)
Clearing number 230
IBAN: CH27 0023 0230 3666 7701U
SWIFT: UBSWCHZH80A
5.2. The amount of CHF 3,000 has to be paid directly to the Claimant.
6. The Claimant is directed to inform the Respondent immediately and directly of the
account number to which the remittances under points 2. and 5.2. are to be made
and to notify the Dispute Resolution Chamber of every payment received.
Distribution of the Solidarity Contribution for the Player E
(Club A, Country B / Club C, Country D)
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*****
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:
Markus Kattner
Acting Secretary General
Enclosed: CAS directives
Distribution of the Solidarity Contribution for the Player E
(Club A, Country B / Club C, Country D)
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