Solidarity Contribution
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 15 July 2016,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
Theo van Seggelen (Netherlands), member
Mohamed Al Saikhan (Saudi Arabia), member
on a matter between 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 case
1.
According to a player passport issued by the Football Association of country B
(hereinafter: Football Association of country B), the player, Player E (hereinafter: the
player), born on 29 October 1987, was registered with the following clubs from
country B:
- Club F as from:
26 July 2001 until 31 December 2001;
12 August 2002 until 31 December 2002;
26 June 2003 until 31 December 2003;
10 May 2004 until 24 February 2005;
26 May 2005 until 1 September 2005;
- Club G, as from 25 February 2005 until 25 May 2005;
- Club A (hereinafter: Club A or Claimant), as from 1 September 2008 until 1
December 2008.
2.
The football season in country B follows the calendar year, i.e. from January until
December of the relevant year.
3.
According to the information in the Transfer Matching System (TMS), the player was
registered with the club from country D, Club C (hereinafter: Club C or Respondent),
on 18 August 2011.
4.
According to the information contained in TMS, on 31 January 2011, the Club I from
country H (hereinafter: Club I) and Club C agreed upon a definitive transfer of the
player from Club I to Club C for a transfer compensation of EUR 4,100,000, payable
as follows:
the amount of EUR 2,700,000 ‘by 5 days from signing this transfer agreement’;
the amount of EUR 200,000 on 15 March 2011;
the amount of EUR 300,000 on 31 March 2011;
the amount of EUR 400,000 on 30 April 2011;
the amount of EUR 250,000 on 31 May 2011;
the amount of EUR 250,000 on 10 July 2011.
5.
On 19 September 2011, Club A lodged a claim in front of FIFA, claiming its
proportion of the solidarity contribution in connection with the transfer of the
player from Club I to Club C, for an alleged transfer compensation of EUR 4,500,000.
6.
In particular, Club A requested the amount of EUR 4,432.50 as solidarity
contribution, plus 5% interest as from July 2011, corresponding to 1.97% of 5% of
the total transfer fee.
Solidarity contribution in connection with the Player E
(Club A, country B / Club C, country D)
2/7
7.
In spite of having been invited by FIFA to provide its position regarding the claim,
Club C did not respond to the claim of Club A within the investigation phase of the
matter at hand.
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
19 September 2011. Consequently, the Rules governing the procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (edition 2008;
hereinafter: Procedural Rules) are 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 and 2 in
conjunction with art. 22 lit. d) of the Regulations on the Status and Transfer of
Players (edition 2016), 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.
In this respect, the Chamber was eager to emphasize that contrary to the information
contained in FIFA’s letter dated 8 July 2016, by means of which the parties were
informed of the composition of the Chamber, the member J refrained from
participating in the deliberations in the case at hand, due to the fact that he has the
same nationality as Club C. In order to comply with the prerequisite of equal
representation of club and player representatives, also the member K refrained from
participating and thus the Dispute Resolution Chamber adjudicated the case in presence
of three members in accordance with art. 24 par. 2 of the Regulations.
4.
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 2016) and, on the other
hand, to the fact that the player was registered with Club C on 18 August 2011 and
that the present claim was lodged on 19 September 2011. In view of the
aforementioned, the Chamber confirmed that the 2010 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 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
Solidarity contribution in connection with the Player E
(Club A, country B / Club C, country D)
3/7
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.
6.
In this respect, the DRC noted that Club A claimed from Club C the payment of the
solidarity contribution, according to Club A corresponding to 1.97% of 5% of the
alleged total transfer compensation of EUR 4,500,000.
7.
In addition to the above, the Chamber took into account that according to the
transfer agreement concluded between Club I and Club C, said parties agreed upon
a transfer compensation of EUR 4,100,000. Said transfer compensation was payable
in six instalments, the first instalment of EUR 2,700,000 falling due within five days
from the signing of the transfer agreement, the second instalment of EUR 200,000
falling due on 15 March 2011, the third instalment of EUR 300,000 falling due on 31
March 2011, the fourth instalment of EUR 400,000 falling due on 30 April 2011, the
fifth instalment of EUR 250,000 falling due on 31 May 2011 and the sixth instalment
of EUR 250,000 falling due on 10 July 2011.
8.
Furthermore, the members of the Chamber noted that Club C, during the
investigation phase of the matter at hand, never took position in the specific matter
relating to the claim of Club A, although having been invited to do so by FIFA.
Therefore, the Chamber deemed that, in this way, Club C renounced to its right to
defence and therefore accepted the allegations of Club A.
9.
As a consequence of the aforementioned consideration, the Chamber established
that, in accordance with art. 9 par. 3 of the Procedural Rules, it shall pass a decision
upon the basis of the documents already on file, i.e. upon the statements and
documents presented by Club A as well as upon the information contained in the
TMS.
10.
Having established the above, 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 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.
11.
In this respect, the DRC recalled that the Football Association of country B had
confirmed that the player, born on 29 October 1987, was registered with Club A as
from 1 September 2008 until 1 December 2008.
Solidarity contribution in connection with the Player E
(Club A, country B / Club C, country D)
4/7
12.
On account of the above and in accordance with art. 1 of Annexe 5 of the
Regulations, the DRC considered that Club A, thus, entitled to receive solidarity
contribution for the period as from 1 September 2008 until 1 December 2008, i.e.
for 3 months of the season of the player’s 21st birthday. In this respect, and
considering the percentage claimed by Club A, the Chamber decided that Club A is
entitled to 1.97% of 5% of the transfer fee.
13.
In view of all of the above, the DRC decided to partially accept the claim of Club A
for 1.97% of 5% of the total transfer compensation, amounting to EUR 4,100,000 as
detailed in point I.4 above, and held that Club C is liable to pay the amount of EUR
4,038.50 to Club A as solidarity contribution in relation to the transfer of the player
from Club I to Club C.
14.
Furthermore, and taking into consideration both the claim of Club A as well as art. 2
par. 1 of Annexe 5 of the Regulations, the Chamber decided that Club C has to pay,
in conformity with the longstanding practice of the DRC, interest at rate of 5% p.a.
as from the due dates, as follows:
a) 5% p.a. on the amount of EUR 2,659.50 as from 1 July 2011;
b) 5% p.a. on the amount of EUR 197 as from 1 July 2011;
c) 5% p.a. on the amount of EUR 295.50 as from 1 July 2011;
d) 5% p.a. on the amount of EUR 394 as from 1 July 2011;
e) 5% p.a. on the amount of EUR 246.25 as from 1 July 2011;
f) 5% p.a. on the amount of EUR 246.25 as from 10 August 2011.
In this respect, the Chamber decided that the interest could only be awarded as
from 1 July 2011 as requested on the first five instalments, since the sixth instalment
had only fallen due on 10 July 2011.
15.
In continuation, 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 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.
16.
In this respect, the Chamber reiterated that the claim of Club A is partially accepted
and established that Club C has to bear the costs of the current proceedings in front
of FIFA.
17.
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.
Solidarity contribution in connection with the Player E
(Club A, country B / Club C, country D)
5/7
18.
The amount in dispute to be taken into consideration in the present proceedings
amounts to EUR 4,432.50 related to the claim of Club A. Therefore, the Chamber
concluded that the maximum amount of costs of the proceedings corresponds to
CHF 5,000 (cf. table in Annexe A).
19.
Considering that the case at hand in principle did not show particular factual
difficulty and that it did not involve specific legal complexity, and the fact that Club
C did not reply during the investigation phase of the matter at hand, the Chamber
determined the final amount of costs of the current proceedings to the amount of
CHF 5,000.
20.
In view of all of the above, the Chamber concluded that the amount of CHF 5,000
has to be paid by Club C to cover the costs of the present proceedings.
*****
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 of the date of
notification of this decision, the amount of EUR 4,038.50, plus 5% interest p.a. until
the date of effective payment as follows:
a) 5% p.a. on the amount of EUR 2,659.50 as from 1 July 2011;
b) 5% p.a. on the amount of EUR 197 as from 1 July 2011;
c) 5% p.a. on the amount of EUR 295.50 as from 1 July 2011;
d) 5% p.a. on the amount of EUR 394 as from 1 July 2011;
e) 5% p.a. on the amount of EUR 246.25 as from 1 July 2011;
f) 5% p.a. on the amount of EUR 246.25 as from 10 August 2011.
3.
In the event that the aforementioned sum and interest are not paid 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 final costs of the proceedings in the amount of CHF 5,000 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. XXXX:
Solidarity contribution in connection with the Player E
(Club A, country B / Club C, country D)
6/7
UBS Zurich
Account number 366.677.01U (FIFA Players’ Status)
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.
*****
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
Enclosed: CAS directives
Solidarity contribution in connection with the Player E
(Club A, country B / Club C, country D)
7/7