Solidarity Contribution
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 30 August 2013,
in the following composition:
on the claim presented by the
Football Federation, of country M
as Claimant
against the club,
Club S, from country R
as Respondent
regarding solidarity contribution in connection
with the transfer of the player K
I.
Facts of the case
1.
According to the Football Federation of country M (hereinafter: Claimant or
FFM), the player K (hereinafter: the player), born on 4 March 1981, was trained
in country M between 1 July 1993 and 4 November 1996.
2.
In this respect, the Claimant submitted a statement of the Director of the club F
from country M, who declared that the player “represented Club K from July
1993 until October 1996, participating in training sessions, friendly matches and
unofficial tournaments in its representation, having been registered with the
Football Federation of country M in November 1996”.
3.
The FFM confirmed that the football season 1993/1994, 1994/1995, 1995/1996,
1996/1997, 1997/1998, 1998/1999, 1999/2000 in country M ran as from 1 August
to 31 July of the following year, the 2000/2001 sporting season started on 1
August and ended on 30 June of the following year and the 2001/2002 season
and subsequent seasons started on 1 July and ended on 30 June of the following
year.
4.
The Football Federation from country R (hereinafter: FFR) informed FIFA that the
player was registered with its affiliated club S (hereinafter: Respondent), on 3
September 2010.
5.
According to the Claimant, the Respondent concluded on 2 September 2010 a
transfer agreement with the club X from country M (hereinafter: involved club),
for the definitive transfer of the player.
6.
On 21 March 2012, the Claimant contacted FIFA claiming its proportion of the
solidarity contribution in connection with the transfer of the player concerned
from the involved club to the Respondent for the alleged transfer compensation
of EUR 2,000,000. In particular, the Claimant requested 18.45% of 5% of the said
transfer compensation, equivalent to EUR 18,450.00, plus 5% interest as from 2
March 2012.
7.
In spite of having been invited by FIFA to provide its position regarding the
claim, the Respondent never replied to the substance of the matter.
Solidarity contribution in connection with the transfer of the player K
(Football Federation, of country M / Club S, from country R)
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II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also DRC or Chamber)
analysed whether it was competent to deal with the matter at hand. In this
respect, the Chamber first referred to art. 21 par. 2 and 3 of the Rules Governing
the Procedures of the Players’ Status Committee and the Dispute Resolution
Chamber (hereinafter: Procedural Rules; edition 2012). The present matter was
submitted to FIFA on 21 March 2012, thus before the aforementioned Rules
entered into force on 1 December 2012. Therefore, the Dispute Resolution
Chamber concluded that the 2008 edition of the Procedural Rules is applicable to
the matter at hand.
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the
Procedural Rules, which states that the Dispute Resolution Chamber shall
examine its jurisdiction in the light of art. 22 to 24 of the Regulations on the
Status and Transfer of Players (edition 2012). In accordance with art. 24 par. 1 in
connection with art. 22 lit. d) of the Regulations on the Status and Transfer of
Players, the Dispute Resolution Chamber is competent to decide on the present
litigation relating to the solidarity mechanism.
3.
Furthermore, the Chamber analysed which edition of the Regulations on the
Status and Transfer of Players (hereinafter: the Regulations) should be applicable
as to the substance of the matter. In this respect, the Chamber referred, on the
one hand, to art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of
Players (editions 2009, 2010 and 2012) and, on the other hand, to the fact that
the present claim was lodged on 21 March 2012 and that the player was
registered for the Respondent on 3 September 2010. In view of the
aforementioned, the Dispute Resolution Chamber concluded that the 2009
edition of the 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 Chamber entered into the substance of the matter. In doing so,
the DRC started by acknowledging the above-mentioned facts of the case as well
as the documents contained in the file.
5.
In that respect, 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.
Solidarity contribution in connection with the transfer of the player K
(Football Federation, of country M / Club S, from country R)
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6.
The Chamber underlined that in the present case, it was an association and not a
club which claimed payment of the solidarity contribution. Therefore, it first had
to analyse whether the conditions set forth in art. 2 par. 3 of Annexe 5 of the
Regulations were fulfilled.
7.
The Chamber recapitulated that the aforementioned provision stipulates that if a
link between a professional player and any of the clubs that trained him cannot
be established within 18 months of his transfer, the solidarity contribution shall
be paid to the association(s) of the country where the professional player was
trained.
8.
On this basis, the members of the Chamber pointed out that, at first, it had to
analyse whether the time frame of 18 months for the possible establishment of a
link between a professional player and a club had already elapsed after the
transfer of the player to the Respondent, which is a prerequisite contained in art.
2 par. 3 of Annexe 5 of the Regulations.
9.
To that regard, the DRC stated that the transfer of the player from the involved
club to the Respondent had taken place on 2 September 2010 and referred to art.
2 par. 1 of Annexe 5 of the Regulations, which stipulates that the solidarity
contribution to the training club(s) should be paid by the new club no later than
30 days after the player’s registration, which took place, in casu, on 3 September
2010.
10.
In view of the aforementioned, the Chamber took note that the required time
frame of 18 months for the possible establishment of a link between the player
and a training club had elapsed and that therefore, the Claimant was, in
principle, entitled to claim the relevant proportion of the 5% pertaining to the
solidarity contribution.
11.
Furthermore, the Chamber outlined that art. 2 par. 3 of Annexe 5 of the
Regulations mentions that the solidarity contribution shall be paid to the
association of the country where the professional was trained. Thus, another
requirement in order for an association to be entitled to the relevant proportion
of the solidarity contribution is that such association can prove that the player
was in fact trained.
12.
In continuation, the Chamber took note of the fact that, in support of its claim,
the Claimant submitted a confirmation of a club from country M that had
confirmed that it had trained the player from July 1993 until October 1996.
13.
In this respect, the DRC found it worthwhile to underline that, although it
appears that the club which trained the player during the aforementioned period
still exists, it is not claiming itself its proportion of the solidarity contribution. In
Solidarity contribution in connection with the transfer of the player K
(Football Federation, of country M / Club S, from country R)
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this respect, the DRC underscored that the situation is surprising, but acceptable
under the applicable Regulations.
14.
Furthermore, the DRC noted that the Respondent never took position in the
specific matter relating to the claim of the Claimant, although having been
invited to do so by FIFA. Therefore, the Chamber deemed that, in this way, the
Respondent renounced to its right of defence and, therefore, accepted the
allegations of the Claimant.
15.
As a consequence of the aforementioned consideration, the Chamber concurred
that, in accordance with art. 9 par. 3 of the Procedural Rules, it shall take a
decision upon the basis of the documents on file, in other words, upon the
statements and documents presented by the Claimant.
16.
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 1 July 1993 until and including
October 1996.
17.
As to the obligation to pay solidarity contribution, the DRC reminded that,
pursuant to art. 2 par. 2 of Annexe 5 of the Regulations, it is the responsibility of
the new club, to calculate and distribute the solidarity contribution. As a result,
the DRC readily accepted that the Respondent is liable for the payment of
solidarity contribution.
18.
Having established that the Respondent is obliged to pay solidarity contribution
to the Claimant, the Chamber then turned to the calculation of the pertinent
amount. In this respect, the DRC took in consideration that the player was born
on 4 March 1981.
19.
As a result, the DRC decided that, in accordance with art. 1 of Annexe 5 of the
Regulations, the Respondent is liable to pay 17.91% of the 5% of the relevant
transfer compensation, i.e. EUR 17,910. In addition, and in accordance with the
Claimant’s request, the Chamber concluded that a 5% interest p.a. on said
amount as of 2 March 2012 should apply. Consequently, the Chamber partially
accepted the claim of the Claimant and determined that the Respondent has to
pay to the Claimant the amount of EUR 17,910 plus 5% interest p.a. on said
amount as of 2 March 2012.
20.
Finally, 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 training
compensation and the solidarity mechanism costs in the maximum amount of
Solidarity contribution in connection with the transfer of the player K
(Football Federation, of country M / Club S, from country R)
5
CHF 25,000 are levied. The costs are to be borne in consideration of the parties’
degree of success in the proceedings.
21.
In this respect, the Chamber reiterated that the Claimant is the successful party of
the present proceedings and decided that therefore the Respondent has to bear
the full costs of the current proceedings in front of FIFA.
22.
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.
23.
The amount in dispute to be taken into consideration in the present proceedings
amounts to EUR 18,450 related to the claim of the Claimant. Therefore, the
Chamber concluded that the maximum amount of costs of the proceedings
corresponds to CHF 5,000 (cf. table in Annexe A of the Procedural Rules).
24.
Considering that the case involved some particular factual difficulties and that
the Respondent never took stance in the present dispute, the Chamber
determined the final amount of 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, the Football Federation of country M, is partially
accepted.
2.
The Respondent, Club S, has to pay to the Claimant, the Football Federation of
country M, within 30 days as from the date of notification of this decision, the
amount of EUR 17,910 plus 5% interest p.a. on said amount as of 2 March 2012
until the date of affective payment.
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 consideration and a formal decision.
4.
Any further claim lodged by the Claimant, the Football Federation of country M,
is rejected.
5.
The final costs of the proceedings in the amount of CHF 3,000 are to be paid by
the Respondent, Club S, within 30 days of notification of the present decision,
to FIFA to the following bank account with reference to case no. xxxxxxxxxx:
x
Solidarity contribution in connection with the transfer of the player K
(Football Federation, of country M / Club S, from country R)
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6.
The Claimant, the Football Federation of country M, is directed to inform the
Respondent, Club S, 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. 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
Deputy Secretary General
Encl. CAS directives
Solidarity contribution in connection with the transfer of the player K
(Football Federation, of country M / Club S, from country R)
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