Solidarity Contribution
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 20 August 2014,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
Taku Nomiya (Japan), member
Theo van Seggelen (Netherlands), member
on the claim presented by the club,
Club X, from country N
as Claimant
against the club,
Club Y, from country I
as Respondent
regarding solidarity contribution in connection
with the transfer of the player O
I.
Facts of the case
1.
The Football Federation of country N confirmed that the player O (hereinafter: the
player), born on 16 June 1989, was registered with its affiliated club, Club X
(hereinafter: the Claimant), from 1 January 2006 until 5 September 2007.
2.
The Football Federation of country N confirmed that the football season in
country N ran from 1 January until 31 December before 2007, whereas since 2007,
it has run from August until July of the following year.
3.
On 5 August 2008, the Club L from country Z (hereinafter: Club L) and Club Y from
country I (hereinafter: the Respondent), concluded a transfer agreement according
to which Club L was entitled to receive a transfer compensation amounting to EUR
2,250,000 payable as follows:
EUR 1,125,000 “upon the PLAYER being registered with [the Respondent]
[…] in no event later than 10 (ten) day from the signature date of the
CONTRACT insofar the ITC […] has been issued”;
EUR 562,500 “by 31st January 2009”;
EUR 562,500 “by 31st August 2009”.
Moreover, the parties agreed to a sell-on-clause “equating 10% […] of the
difference between the transfer fee received by [the Respondent] and the amount
paid by [the Respondent] to [Club L]”. In particular, it would pay EUR 660,000 on
20 May 2009 instead of EUR 750,000 due 31 August 2009.
4.
On 7 May 2009, the Respondent and Club L concluded an agreement related to
two transfer agreements related to the player and another player, amending the
last instalment of both agreements. According to the amendment, the
Respondent agreed to pay the last of its installments at an earlier date, but at a
reduced amount. In this respect, the Respondent enclosed an e-mail between the
Respondent and Club L, dated 13 May 2009, according to which the parties agreed
to attribute the reduction of EUR 90,000 as follows: EUR 67,500 reduction towards
the player and EUR 22,500 reduction towards the other player.
5.
According to the Football Federation of country I, the player was registered with
the Respondent on 24 September 2008.
6.
On 28 January 2010, the Claimant lodged a claim before FIFA against the
Respondent requesting the solidarity contribution in connection with the
transfer of the player from Club L to the Respondent. In particular, the Claimant
requested 16.79% of the 5% of the transfer compensation, plus 5% interest p.a.
Distribution of the solidarity contribution in connection with the transfer of the player O
(Club X, from country N / Club Y, from country I)
2
7.
The Respondent rejected the claim lodged against it and stated that it has already
paid the solidarity contribution to the Claimant. In this respect, the Respondent
assessed that, after the reduction, it paid EUR 2,182,500 to Club L for the transfer,
and claims that it distributed 0.34%, i.e. EUR 7,420.50, to the Claimant. In this
respect, the Respondent submitted the following payment documents:
24 March 2009: EUR 3,825 payment to The Bank, Club X / Club S / Mr. C
29 March 2010: EUR 3,595.50 to The Bank, Club X / Club S / Mr. C
8.
As to the alleged payments made by the Respondent, the Claimant claimed that
“there were no financial entrances to [its] bank account”. Furthermore, the
Claimant stated not having informed the Respondent about its bank details
during the investigation and that it “does not have any bank account in the
indicated bank”. In addition, it asked for “documents on which the decision of
[the Respondent] to effect the payment to the corresponding bank accounts had
been accepted”.
9.
In reply, the Respondent provided on several occasions copies of e-mails allegedly
exchanged between Club Y and the Claimant, in which said club had disclosed its
bank details to the Respondent. In particular, on 27 February 2009, the Claimant
supposedly sent an e-mail to the Respondent, which reads as follows: “bank: Bank
INT’L PLC; beneficiary: [the Claimant]/Club S/Mr. C; account number: 1153 003 000
152”.
10.
On 13 May 2013, the Claimant asserted that the player had been loaned to Club N
and to Club G. As a result, the Claimant requested FIFA to provide them with the
information contained in the TMS.
11.
On 14 March 2014, the Claimant insisted that there were no evidences of the
payment of solidarity contribution. In particular, the Claimant rejected that the emails enclosed to the Respondent’s reply are evidences of the fulfillment of the
latter’s obligations. In addition, the Claimant reiterated that e-mails are not
official correspondence and that they had never been in contact with the
Respondent. As a result, the Claimant stated that it had never informed the
Respondent of the correct bank details.
12.
Furthermore, the Claimant amended its claim. In particular, it requested 16.79% of
the solidarity contribution for the transfer of the player, totally amounting EUR
18,322, plus 5% p.a. “for unjustified delay in payment”, as well as 0,83% of the
10% of the difference between the transfer fee received by the Respondent from
Club G and the amount paid by the Respondent to Club L.
13.
On 25 March 2014, the Claimant assessed that in the bank statements provided
with by the Respondent, the Club S (hereinafter: “Club S”) and Mr. C were
Distribution of the solidarity contribution in connection with the transfer of the player O
(Club X, from country N / Club Y, from country I)
3
mentioned as the beneficiaries. In this respect, the Claimant stated that it has no
legal relationship with Club S.
14.
Alternatively, the Claimant stated that the Respondent provided with bank
statements of transfers for the amount of EUR 7,420. Since in the Claimant’s
opinion the outstanding solidarity contribution totally amounts to EUR 18,322, the
Claimant concluded that the Respondent would still have to pay EUR 10,902.
15.
On 12 May 2014, the Respondent lastly rejected the claim by reiterating that the
solidarity contribution was paid.
16.
Furthermore, the Respondent held that the Claimant is entitled to 0,34% of the
transfer fee solidarity contribution, which equals to EUR 7,420.50, since the player
was registered for the Claimant from 1 January 2007 until 5 September 2009
according to the player passport issued by the Football Association of country Z
based on which it proceeded to distribute the solidarity contribution. In this
respect, the Respondent assessed that the Claimant calculated the solidarity
contribution for the period from 1 January 2006 until 31 December 2006 and from
1 January 2007 until 5 September 2007 and stated that its legal representative, on
17 December 2009, stated that the player was registered for the Claimant for five
and a half season, this is, in the Respondent’s opinion, from 2001 to 2006.
17.
Lastly, the Respondent confirmed that the loan to Club G was free of charge and,
hence, nothing was paid to Club L.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter: the DRC or the Chamber)
analysed whether it was competent to deal with the case at hand. In this respect,
the DRC first referred to art. 21 par. 1 and 3 of the Rules Governing the Procedures
of the Players' Status Committee and the Dispute Resolution Chamber (edition
2014 and 2012). The present matter was submitted to FIFA on 28 January 2010, as
a consequence, the DRC concluded that 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.
2.
Subsequently, the Chamber referred to art. 3 par. 1 of the Procedural Rules, which
states that the jurisdiction of the DRC is set out in art. 24 par. 2 of the Regulations
on the Status and Transfer of Players (edition 2014). In accordance with art. 22 lit.
d) and art. 24 par. 2 of the aforementioned Regulations, the DRC concluded that it
was competent to deal with a dispute regarding solidarity contribution involving a
Distribution of the solidarity contribution in connection with the transfer of the player O
(Club X, from country N / Club Y, from country I)
4
club affiliated to the Football Federation of country N and a club affiliated to the
Football Federation of country I.
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 Chamber referred, on the one hand, to art. 26 par. 1 and 2 in
connection with art. 29 of the Regulations on the Status and Transfer of Players
(editions 2014, 2012, 2010 and 2009) and, on the other hand, to the fact that the
present claim was lodged on 28 January 2010 and that the player was registered
for the Respondent on 24 September 2008. In view of the aforementioned, the
DRC concluded that the 2008 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.
4.
The competence of the DRC and the applicable regulations having been
established, it entered into the substance of the matter. In doing so, the Chamber
started by acknowledging the above-mentioned facts of the case as well as the
documents contained in the file.
5.
In this respect, the DRC noted that the Claimant requested the payment of the
16.79% of the 5% of the transfer fee paid by the Respondent as solidarity
contribution, plus 5% interest p.a.
6.
In addition to the above, the Chamber took into account that, according to the
agreement on file, Club L and the Respondent agreed upon a transfer
compensation of EUR 2,182,500 payable in three instalments as follows:
-
EUR 1,1250,000 upon the player being registered with the Respondent and
no later than 10 days after signing the transfer agreement;
EUR 562,500 on or before 31 January 2009; and
EUR 495,000 on or before 20 May 2009.
7.
Furthermore, the DRC duly noted that the Respondent assessed that it paid the
relevant solidarity contribution to the Claimant in the bank account the latter had
indicated, fact which was denied by the Claimant.
8.
Having established the above, the DRC referred to art. 21 of the Regulations 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 in proportion of the number of years the player has been registered with
the relevant club(s) between the seasons of his 12th and 23rd birthday.
Distribution of the solidarity contribution in connection with the transfer of the player O
(Club X, from country N / Club Y, from country I)
5
9.
In this respect, the DRC recalled that the Football Federation of country N had
confirmed that the player, born on 16 June 1989, was registered with the Claimant
as from 1 January 2006 until 5 September 2007.
10.
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 January 2006 until 5 September
2007.
11.
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
16 June 1989.
12.
As a result, the DRC decided that, in accordance with art. 1 of Annexe 5 of the
Regulations as well as in accordance with the percentage claimed by the Claimant,
the Respondent is liable to pay 16.79% of the 5% of the relevant transfer
compensation, i.e. EUR 18,322.
13.
In this context, the Chamber recalled that, the Respondent provided with
documentary evidence of the payment of EUR 7,420, although the Claimant
denied any payment and held that it had not informed the Respondent of its bank
details.
14.
In this respect, the DRC referred to 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. In particular, the Chamber stressed out that the Claimant failed
to provide with any evidence supporting that it had never informed the
Respondent of its bank details and that the bank account in which the payment
was made was not the Claimant’s account, whereas the Respondent had provided
with e-mails in which the Claimant reasonably appeared to have informed of its
bank details as well as with transfer receipts of the relevant payments.
15.
In light of the foregoing, the Chamber concluded that the payments in the
amount of EUR 7,420 shall be considered as partial payments of the solidarity
contribution in connection with the transfer of the player from Club L to the
Respondent.
16.
Consequently, the DRC partially accepted the claim of the Claimant and
determined that the Respondent has to pay to the Claimant the amount of EUR
10,902.
Distribution of the solidarity contribution in connection with the transfer of the player O
(Club X, from country N / Club Y, from country I)
6
17.
In addition, and in accordance with the Claimant’s request, the DRC concluded
that a 5% interest rate p.a. on said amount as of the date of the claim should
apply.
18.
The Chamber then turned its attention to the request for the 10% of the next
transfer/conditional payment. In this respect, the DRC referred once more to art.
12 par. 3 of the Procedural Rules.
19.
As a result, and in view of the lack of evidences in this regard, the Chamber
decided to reject the request for the 10% of the subsequent transfer/conditional
payment.
20.
Finally, the DRC 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 CHF
25,000 are levied. The costs are to be borne in consideration of the parties’ degree
of success in the proceedings.
21.
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.
22.
The amount in dispute to be taken into consideration in the present proceedings
amounts to EUR 18,322 related to the claim of the Claimant. Therefore, the DRC
concluded that the maximum amount of costs of the proceedings corresponds to
CHF 5,000.
23.
Considering that the case at hand did not compose any complex factual or legal
issues as well as that the claim of the Claimant has been partially accepted, the
Chamber determined the final amount of costs of the current proceedings to the
amount of CHF 5,000, which shall be borne by the Respondent.
*****
III.
Decision of the Dispute Resolution Chamber
1. The claim of the Claimant, Club X, is partially accepted.
Distribution of the solidarity contribution in connection with the transfer of the player O
(Club X, from country N / Club Y, from country I)
7
2. The Respondent, Club Y, has to pay to the Claimant, Club X, within 30 days the
amount of EUR 10,902 plus 5% interest p.a. on said amount as of 28 January 2010.
3. If the aforementioned sum plus interest is 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, Club X, is rejected.
5. The final amount of costs of the proceedings in the amount of CHF 5,000 are to be
paid to FIFA within 30 days as from the date of notification of the present decision
as follows:
5.1 The amount of CHF 2,500 by the Respondent, Club Y.
5.2 The amount of CHF 2,500 by the Claimant, Club X.
5.3 The above-mentioned amounts (i.e. CHF 2,500 and CHF 2,500) have to be
paid to the following bank account with reference to case no.:
UBS Zurich
Account number 366.677.01U (FIFA Players’ Status)
Clearing number 230
IBAN: CH27 0023 0230 3666 7701U
SWIFT: UBSWCHZH80A
6. The Claimant, Club X, is directed to inform the Respondent, Club Y, 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
Distribution of the solidarity contribution in connection with the transfer of the player O
(Club X, from country N / Club Y, from country I)
8
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:
Jérôme Valcke
Secretary General
Encl.
CAS directives
Distribution of the solidarity contribution in connection with the transfer of the player O
(Club X, from country N / Club Y, from country I)
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