Solidarity Contribution
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 27 August 2012,
by Mr Philippe Diallo (France), DRC judge,
on a matter between the club
Club F, from country B
and the club
Club N, from country P
and the club
Club C, from country B
as Intervening party
regarding a dispute relating to the calculation of solidarity contribution
in connection with the player J.
I.
Facts of the case
1.
According to the player passport issued by the country B Football Federation, the
player J (hereinafter: the player), born in January 1983, was registered with the
country B Club F (hereinafter: Club F), from 12 January 2005 until
31 December 2006.
2.
On 17 July 2007, Club V, from country B (hereinafter: Club V), Club D, from
country P (hereinafter: Club N) and the player signed an agreement of “partial
definitive cession of the contractual, federative and economical rights of the
professional football athlete” (hereinafter: the transfer agreement), by means of
which, according to clause II, Club V ceded to Club N 50% of the above-mentioned
rights.
3.
The clause III of the transfer agreement established that for the present definitive
assignment Club V would be entitled to receive from Club N the amount of EUR
200,000 to be paid in six instalments, due on the following dates:
-
23 July 2007, the sum of EUR 50,000;
31 August 2007, the sum of EUR 50,000;
31 January 2008, the sum of EUR 25,000;
31 March 2008, the sum of EUR 25,000;
30 June 2008, the sum of EUR 25,000;
31 July 2008, the sum of EUR 25,000.
4.
According to clause V of the transfer agreement, the parties agreed that Club V
would be responsible for the payment of any amounts to any other entity,
regulated by FIFA, either for indemnification, compensation or solidarity
mechanism.
5.
On 12 August 2009, Club F lodged a claim at FIFA against Club N, requesting the
payment of the solidarity contribution corresponding to 0.9849% of the total
transfer compensation agreed upon between Club V and Club N, which amounted
to EUR 200,000. Club F provided a copy of the transfer agreement, which
stipulated the above-mentioned transfer compensation. Additionally, Club F
required
default
interest
at
a
rate
of
5% per annum since the date on which the payment should have been done.
6.
In its response, Club N stated that under clause V of the transfer agreement signed
between the relevant parties it was agreed that Club V would be responsible for
any payments or any values, including the solidarity contribution.
7.
In view of the above, FIFA informed the parties involved about the jurisprudence
of the Dispute Resolution Chamber (DRC) applied in similar matters in accordance
Solidarity contribution for the player J
(Club F, from country B / Club N, from country P / Club V, from country B)
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with which the player’s new club is ordered to remit the relevant proportion(s) of
the 5% solidarity contribution to the club(s) involved in the player’s training and
that at the same time, the player’s former club is ordered to reimburse the same
proportion(s) of the 5% of the compensation that it received from the player’s
new club.
8.
Therefore, FIFA invited Club N to distribute the relevant proportion of the
solidarity contribution to Club F as well as invited Club V to reimburse Club N the
relevant proportion of 5% of the transfer compensation agreed.
9.
Subsequently, on the one hand, Club F specified its claim, asserting that it was
entitled to receive the amount of EUR 2,210, while, on the other hand, Club N
informed that it would proceed in accordance with the jurisprudence of the DRC,
and had apparently already requested Club V the reimbursement of the 5% paid
in excess for the transfer.
10.
Notwithstanding the above, Club F informed FIFA that the parties did not reach an
amicable solution concerning this matter and insisted in its claim.
11.
Despite having been informed of the jurisprudence of the DRC, Club V never
submitted any comments during the investigation.
II.
Considerations of the DRC judge
1.
First of all, the DRC judge analysed whether he was competent to deal with the
case at hand. In this respect, he took note that the present matter was submitted
to FIFA on 12 August 2009. Consequently, the 2008 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 par. 2 and par. 3 of the Procedural Rules).
2.
Subsequently, the DRC judge referred to art. 3 par. 2 and par. 3 of the Procedural
Rules and confirmed that, in accordance with art. 24 par. 1 and par. 2 lit. i and iii.
in conjunction with art. 22 lit. d) of the Regulations on the Status and Transfer of
Players (edition 2010), the DRC judge is competent to decide on the present
matter which is (i) a dispute relating to solidarity mechanism between clubs
belonging to different associations in connection with an international transfer of
a player, (ii) has already a clear established jurisprudence and (iii) does not contain
complex factual or legal issues.
3.
Furthermore, and taking into consideration that the transfer agreement was
signed on 17 July 2007, the DRC judge analysed which regulations should be
applicable as to the substance of the matter. In this respect, he confirmed that in
Solidarity contribution for the player J
(Club F, from country B / Club N, from country P / Club V, from country B)
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accordance with art. 26 par. 1 and par. 2 of the Regulations on the Status and
Transfer of Players (editions 2010, 2009, 2008 and 2005), the 2005 version of said
Regulations (hereinafter: the Regulations) is applicable to the present matter as to
the substance.
4.
The competence of the DRC judge and the applicable Regulations having been
established, the DRC judge entered into the substance of the matter and started
by acknowledging the above-mentioned facts as well as the documentation
submitted by the parties.
5.
In this regard, the DRC judge started by acknowledging that Club F requested
solidarity contribution in the amount of EUR 2,210, basing its claim on the transfer
compensation amounting to EUR 200,000, agreed between Club N and Club V on
17 July 2007, in connection with the international transfer of the player. The DRC
judge remarked that Club F presented a copy of the transfer agreement, which
confirmed the transfer compensation alleged by the latter. Equally, the DRC judge
took note that according to said transfer agreement Club N had to pay Club V the
aforementioned transfer compensation in six different instalments, respectively
due as follows:
-
23 July 2007, the sum of EUR 50,000;
31 August 2007, the sum of EUR 50,000;
31 January 2008, the sum of EUR 25,000;
31 March 2008, the sum of EUR 25,000;
30 June 2008, the sum of EUR 25,000;
31 July 2008, the sum of EUR 25,000.
6.
Furthermore, the DRC judge noted that according to clause V of the transfer
agreement any amounts payable to any other entity, regulated by FIFA, either for
indemnification, compensation or solidarity mechanism, would be paid by Club V.
7.
In this respect, the DRC judge first of all emphasised that, as established in art. 21
in conjunction with Annexe 5 of the Regulations, 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 distributed by the new club as solidarity contribution to
the club(s) involved in the training and education of the player in proportion to
the number of years the player has been registered with the relevant clubs
between the seasons of his 12th and 23rd birthday.
8.
In continuation, the DRC judge took note that Club N, in its first position, referring
to the clause V of the transfer agreement, affirmed that Club V would be the
responsible to pay solidarity contribution. In other words, Club N asserted that it
omitted to deduct 5% of the relevant transfer compensation related to the
Solidarity contribution for the player J
(Club F, from country B / Club N, from country P / Club V, from country B)
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distribution of the solidarity contribution. However, after being informed about
the jurisprudence of the Dispute Resolution Chamber (DRC) applied in similar cases
(cf. point I.7), the DRC judge acknowledged that Club N declared being willing to
proceed according to FIFA’s instruction as well as that it already requested Club V
for the reimbursement of the 5% corresponding to the solidarity contribution.
9.
Notwithstanding the aforementioned, the DRC judge finally remarked that Club F,
at a later date, informed that the parties did not reach an amicable settlement in
the present matter and insisted in its claim. Additionally, the DRC judge took note
that Club F never replied nor reacted during the course of the investigation.
10.
Taking into account all the above, the DRC judge considered that it remained
undisputed by the parties that Club F is entitled to receive solidarity contribution
in connection with the international transfer of the player, on the basis of the
transfer compensation amounting to EUR 200,000.
11.
Moreover, the DRC judge referred again to art. 21 and art. 1 of Annexe 5 of the
Regulations which clearly stipulates 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 (…) “ (emphasis added).
12.
In this respect, the DRC judge was eager to emphasize that the solidarity
mechanism is a principle well-established in the Regulations, from which the
parties signing a transfer or loan contract cannot derogate through the contents
of a contract. In other words, the obligation to distribute solidarity contribution
cannot be set aside by means of a contract concluded between the clubs involved
in a player’s transfer. Thus, as for the distribution of the solidarity contribution,
the amount to be taken into account when calculating the solidarity contribution
payments due to the club(s) involved in the player’s education and training, is the
amount actually agreed upon as the total compensation payable by the new club
to the former club, regardless of any provision to the contrary stipulated in the
transfer or loan contract.
13.
Subsequently and directly related to the above, the DRC judge referred to the
well-established jurisprudence of the DRC which has to be applied in the present
matter, in accordance with which the player’s new club is ordered to remit the
relevant proportion(s) of the 5% solidarity contribution to the club(s) involved in
the player’s training and education in strict application of art. 1 and art. 2 of
Annexe 5 of the Regulations. At the same time, according to said well-established
jurisprudence, the player’s former club is ordered to reimburse the same
proportion(s) of the 5% of the compensation that it received from the player’s
new club.
Solidarity contribution for the player J
(Club F, from country B / Club N, from country P / Club V, from country B)
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14.
In light of the above, the DRC judge decided that Club N is liable to pay the
relevant proportion of the 5% solidarity contribution to Club F and that Club V
must reimburse the same proportion of the 5% solidarity contribution to Club N.
15.
In this regard, having confirmed the above-mentioned obligation incumbent on
Club N, the DRC judge went on to establish the proper calculation of the relevant
proportion of solidarity contribution due to Club F.
16.
To that end, the DRC judge 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 into consideration the age of the player at the time he was being
training and educated by the club(s) concerned.
17.
In this respect, the DRC judge recalled that the country B Football Federation had
confirmed that the player, born in January 1983, was registered with Club F as
from 12 January 2005 until 31 December 2006 as well as that the relevant transfer
compensation amounted to EUR 200,000, payable in instalments.
18.
Consequently, the DRC judge established that, in accordance with the breakdown
provided for in art. 1 of Annexe 5 of the Regulations, Club F is entitled to receive
20% of 5% of the compensation paid by Club N to Club V, i.e.
20% of 5% of EUR 200,000.
19.
In addition, regarding the interest claimed by the Claimant, the DRC judge
emphasized that according to art. 2 par. 1 of the Annexe 5 of the Regulations, the
deadline for payment of the solidarity contribution in case of contingent
payments is 30 days after the date of such payments.
20.
Moreover, the DRC judge recalled that the relevant transfer agreement stipulated
that the transfer compensation of EUR 200,000 was to be paid in six different
instalments, as described under point II.5.
21.
Equally, the DRC judge highlighted that, in accordance to the well-established
jurisprudence concerning the payment of interest of the Dispute Resolution
Chamber, default interest at a rate of 5% per annum is applicable as from the first
day after the respective due dates of each instalment.
22.
In view of all the above, the DRC judge decided to partially accept the claim of
Club F and that Club N must pay to Club F the amount of EUR 2,000 plus default
interest of 5% per annum as follows:
-
5% per annum on the sum of EUR 500 as of 23 August 2007;
5% per annum on the sum of EUR 500 as of 1 October 2007;
Solidarity contribution for the player J
(Club F, from country B / Club N, from country P / Club V, from country B)
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-
5% per annum on the sum of EUR 250 as of 2 March 2008;
5% per annum on the sum of EUR 250 as of 1 May 2008;
5% per annum on the sum of EUR 250 as of 31 July 2008;
5% per annum on the sum of EUR 250 as of 31 August 2008.
23.
In the same context, the DRC judge decided that Club V must reimburse the
amount of EUR 2,000 to Club N.
24.
The DRC judge concluded his deliberations as to the substance of the matter by
rejecting any further claim of Club F.
25.
Finally, the DRC judge referred to art. 18 par. 1 of the Procedural Rules, according
to which, in proceedings before the DRC, including the DRC judge related to
disputes regarding training compensation and the solidarity mechanism, costs in
the maximum amount of currency of country S 25’000 are levied.
26.
Taking into account all the above, the DRC judge concluded that Club N has to
bear the costs of the current proceedings in front of FIFA.
27.
Furthermore and according to Annex A of the Procedural Rules, the costs of the
proceedings are to be levied on the basis of the amount in dispute.
28.
On that basis, the DRC judge held that the amount to be taken into consideration
in the present proceedings is EUR 2,210 related to the amount claimed by Club F.
Consequently, the DRC judge concluded that the maximum amount of costs of the
proceedings corresponds to currency of country S 5,000 (cf. table in Annex A).
29.
Considering that the case at hand did not compose any complex factual or legal
issues and that it was adjudicated by the DRC judge and not by the DRC, the DRC
judge determined the costs of the current proceedings to the amount of
currency of country S 1,500.
*****
Solidarity contribution for the player J
(Club F, from country B / Club N, from country P / Club V, from country B)
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III.
Decision of the Dispute Resolution Chamber (DRC) judge
1.
The claim of the Club F, from country B, is partially accepted.
2.
The country P club, Club N, has to pay to the Club F, from country B, within 30
days as from the date of notification of this decision, the amount of EUR 2,000
plus default interest on said amount at a rate of 5% per annum until the date of
effective payment, as follows:
2.1 5% per annum on the sum of EUR 500 as of 23 August 2007;
2.2 5% per annum on the sum of EUR 500 as of 1 October 2007;
2.3 5% per annum on the sum of EUR 250 as of 2 March 2008;
2.4 5% per annum on the sum of EUR 250 as of 1 May 2008;
2.5 5% per annum on the sum of EUR 250 as of 31 July 2008;
2.6 5% per annum on the sum of EUR 250 as of 31 August 2008.
3.
If the aforementioned sum plus interest is not paid within the aforementioned
deadline, the present matter shall be submitted, upon request, to FIFA’s
Disciplinary Committee for its consideration and a formal decision.
4.
Any further request filed by Club F, from country B, is rejected.
5.
The costs of the proceedings in the amount of currency of country S 1,500 are to
be paid to FIFA by Club N, from country P, within 30 days as from the
notification of the present decision to the following bank account with reference
to
case
no.
[XX-XXXXX]:
6.
The Club F, from country B, is directed to inform the Club N, from country P,
immediately and directly of the account number to which the remittance is to be
made and to notify the Dispute Resolution Chamber (DRC) judge of every
payment received.
7.
The Club C, from country B, has to reimburse the amount of EUR 2,000 to the Club
N, from country P, within 30 days as from the date of notification of this
decision.
8.
If the aforementioned sum is not paid within the aforementioned deadline, an
interest rate of 5% per year will apply as of expiry of the fixed time limit and the
present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee
for its consideration and a formal decision.
Solidarity contribution for the player J
(Club F, from country B / Club N, from country P / Club V, from country B)
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9.
The Club N, from country P, is directed to inform the Club V, from country B,
immediately and directly of the account number to which the remittance is to be
made and to notify the Dispute Resolution Chamber (DRC) judge of every
payment received.
*****
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
CH-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 DRC judge:
Jérôme Valcke
Secretary General
Encl.
CAS directives
Solidarity contribution for the player J
(Club F, from country B / Club N, from country P / Club V, from country B)
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