Solidarity Contribution
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 28 August 2014,
in the following composition:
Geoff Thompson (England), Chairman
Guillermo Saltos Guale (Ecuador), member
Jon Newman (USA), member
on the claim presented by the club,
Club A, from country B
Represented by the Football Federation from country B
as Claimant / Counter-Respondent
against the club,
Club C, country D
as Respondent / Counter-Claimant
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 Federation from country
B, the player from country X, Player E (hereinafter: the player), born on 2 April 1990,
was registered with the club from country B, Club A (hereinafter: the Claimant /
Counter-Respondent), as from 1 July 2008 until 31 August 2011.
2.
The sporting season in country B during the period of time the player was registered
with the Claimant / Counter-Respondent started on 1 July and ended on 30 June of
the following year.
3.
The Football Federation from country D confirmed that the player was
registered with Club C (hereinafter: the Respondent / Counter-Claimant) on 1
September 2011.
4.
On 6 September 2013, the Claimant / Counter-Respondent contacted FIFA
claiming its proportion of the solidarity contribution in connection with the
transfer of the player concerned from the Claimant / Counter-Respondent to the
Respondent / Counter-Claimant for a transfer compensation of EUR 11,000,000.
In particular, the Claimant / Counter-Respondent requested 1,58% of the alleged
“gross” transfer compensation of EUR 11,468,284, according to the Claimant /
Counter-Respondent equivalent to EUR 181,577.
5.
The Claimant / Counter-Respondent explained that it had agreed with the
Respondent / Counter-Claimant upon a transfer compensation of EUR
11,000,000 net, i.e. without including the solidarity contribution.
6.
According to the information contained in the Transfer Matching System (TMS),
the Claimant / Counter-Respondent and the Respondent / Counter-Claimant
agreed, inter alia, upon the following:
“Article 3 – Payment of transfer compensation
a) Fixed Amount
In consideration of such transfer of registration, Club C agrees to pay to the transferor,
by way of transfer compensation for the player, a sum of 11 000 000 (eleven million)
euros (net of any local taxes, VAT and solidarity contribution) to be paid in three
instalments as follows:
- € 4 500 000 (four million five hundred thousand euros) upon delivery of the
international transfer certificate
- € 3 500 000 (three million five hundred thousand euros) on the 30/06/2012
- € 3 000 000 (three million euros) on the 30/06/2013
(…)
b) Solidarity contribution:
The parties agree that the transfer compensation and the bonus set out in this
agreement does not include the FIFA solidarity contribution. Such compensation will
be borne by Club C, and will not be deducted from the transfer compensation.”
Solidarity contribution in connection with the player E
(Club A, from country B / Club C, from country D)
2/12
7.
On 27 January 2014, the Respondent / Counter-Claimant stated in its reply to the
claim that it omitted to deduct 5% solidarity contribution from the transfer
compensation, i.e. it paid 100% of the transfer compensation to the Claimant /
Counter-Respondent. In this respect, the Respondent / Counter-Claimant stated
that art. 3 b) of the transfer agreement is invalid in view of the Regulations on
the Status and Transfer of Players and, consequently, the Claimant / CounterRespondent shall reimburse 5% of the transfer compensation, i.e. EUR 550,000,
to the Respondent / Counter-Claimant. According to the Respondent / CounterClaimant, the term “net” in art. 3 a) of the transfer agreement refers only to
“bank costs and/or taxes”.
8.
Furthermore, the Respondent / Counter-Claimant stated that, as to the solidarity
contribution, the Claimant / Counter-Respondent is entitled to 1,58333% of the
transfer compensation, equivalent to EUR 174,130 only (later on changed to EUR
165,423.50). In continuation, the Respondent / Counter-Claimant stated that it
had already distributed the relevant solidarity contribution to the player’s
training clubs Club Y and Club Z.
9.
In the alternative, in case the DRC decides that the abovementioned clause in
the transfer agreement is valid, the Respondent / Counter-Claimant argued that
the Claimant / Counter-Respondent is not entitled to any solidarity contribution
since a compensation for the training of the player is deemed to be included in
the transfer compensation of EUR 11,000,000. Furthermore, the amount of EUR
11,000,000 would in that case constitute only 95% of the transfer compensation,
instead of 100%, which would result in different amounts of solidarity
contribution. According to the Respondent / Counter-Claimant, this situation
would be contrary to the longstanding jurisprudence of the DRC in similar cases.
10.
On 21 May 2014, the Respondent / Counter-Claimant submitted evidence
regarding the payment of solidarity contribution to the club from country B,
Club Y, as follows:
- EUR 78,503.42 on 26 October 2011;
- EUR 61,058.22 on 25 September 2012;
- EUR 52,335.62 on 20 August 2013.
11.
Equally, the Respondent / Counter-Claimant submitted evidence regarding the
payment of solidarity contribution to the club from country U, Club Z, as follows:
- EUR 33,996.57 on 8 November 2011;
- EUR 26,441.78 on 25 September 2012;
- EUR 22,664.38 on 20 August 2013.
According to the player passport provided by the Football Federation from
country U, the player was registered with Club Z from 18 August 1997 until 21
12.
Solidarity contribution in connection with the player E
(Club A, from country B / Club C, from country D)
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July 2004. The sporting seasons in country U during the period that the player
was registered with the aforementioned club started on 1 July and ended on 30
June of the following year.
13.
According to the player passport provided by the Football Federation from
country B, the player was registered with Club Y from 22 July 2004 until 30 June
2008. The sporting seasons in country B during the period that the player was
registered with the aforementioned club started on 1 July and ended on 30 June
of the following year.
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, it took note that the present matter was submitted to FIFA on 6
September 2013. Consequently, the 2012 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 of the 2012 and 2014 editions 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
combination with art. 22 lit. (d) of the Regulations on the Status and Transfer of
Players (edition 2014), the Dispute Resolution Chamber is competent to deal
with the matter at stake relating to a dispute regarding 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 22 August 2014 by means of which
the parties were informed of the composition of the Chamber, the member
Philippe Diallo and the member Leonardo Grosso refrained from participating
in the deliberations in the case at hand, due to the fact that the member Philippe
Diallo has the same nationality as the Claimant / Counter-Respondent and the
member Leonardo Grosso has the same nationality as the Respondent / CounterClaimant 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 Chamber 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, it confirmed that in accordance with art. 26 par. 1 and 2
of the Regulations on the Status and Transfer of Players (editions 2010, 2012 and
2014), and considering that the player was registered with the Respondent /
Counter-Claimant on 1 September 2011, the 2010 edition of the Regulations on
Solidarity contribution in connection with the player E
(Club A, from country B / Club C, from country D)
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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 Chamber entered into the substance of the matter. The
members of the Chamber started by acknowledging the facts of the case as well
as the documentation on file. 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.
6.
First of all, the DRC took note that the Claimant / Counter-Respondent requested
1,58% of the alleged “gross” transfer compensation of EUR 11,468,284 as
solidarity contribution from the Respondent / Counter-Claimant in relation with
the transfer of the player from the Claimant / Counter-Respondent to the
Respondent / Counter-Claimant.
7.
In this respect, the DRC emphasised that, as established in art. 21 in combination
with art. 1 of 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 club(s)
between the seasons of his 12th and 23rd birthday.
8.
In continuation, the DRC took note that, on the one hand, the Respondent /
Counter-Claimant stated that it had not retained 5% of the transfer
compensation of EUR 11,000,000 and, thus, had paid the total amount of
transfer compensation to the Claimant / Counter-Respondent. In other words,
the Respondent / Counter-Claimant asserted that it omitted to deduct 5% of the
relevant transfer compensation relating to the distribution of the solidarity
contribution. On the other hand, the DRC noted that the Claimant / CounterRespondent asserted that, in accordance with article 3 par. b of the transfer
agreement, it had agreed with the Respondent / Counter-Claimant upon a net
transfer compensation, i.e. without including the solidarity contribution, since
the said article stipulated that “The parties agree that the transfer
compensation and the bonus set out in this agreement does not include the FIFA
solidarity contribution. Such compensation will be borne by [the Respondent /
Counter-Claimant], and will not be deducted from the transfer compensation”.
9.
Taking into account the above arguments, the DRC observed that the main issue
in the current matter is that the Claimant / Counter-Respondent is of the opinion
that the total amount of EUR 11,000,000 is due to it and that, in accordance with
Solidarity contribution in connection with the player E
(Club A, from country B / Club C, from country D)
5/12
article 3 par. b of the transfer agreement, the Respondent / Counter-Claimant
had to pay, on top of the total transfer compensation of EUR 11,000,000, the
relevant amounts concerning solidarity contribution to the club(s) involved in
the training and education of the player, including the Claimant / CounterRespondent itself.
10.
In this context, the DRC 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).
11.
In this respect, the DRC was eager to emphasize that the solidarity mechanism
is a principle well-established in the Regulations, from which the parties signing
a transfer contract cannot derogate through the contents of a contract. In other
words, the obligation to distribute solidarity contribution in accordance with
the Regulations 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.
12.
In this regard, the DRC considered that if one would follow the Claimant /
Counter-Respondent’s interpretation of the transfer agreement and the
Claimant / Counter-Respondent’s argument that the Respondent / CounterClaimant should pay the Claimant / Counter-Respondent the total compensation
of EUR 11,000,000 without deducting any amount(s) in conformity with the rules
regarding solidarity contribution, it would mean that, in the present matter, the
amount of EUR 11,000,000 would constitute 95% of the total amount of
compensation for the transfer of the player. The DRC stressed that would this
line be followed, the total amount of compensation would be EUR 11,578,947
(EUR 11,000,000 / 95 x 100 = EUR 11,578,947). Consequently, the DRC considered
that would the solidarity contribution be calculated in the way the Claimant /
Counter-Respondent argued, the 5% solidarity contribution would, according
to the Regulations, then be calculated on the basis of EUR 11,578,947 instead of
EUR 11,000,000, a calculation which, in the DRC’s view, is incorrect as such an
approach would destabilize the entire system of the solidarity mechanism and
would undermine the legal certainty the Regulations provide. It would further
be to the detriment of the training clubs, which received solidarity contribution
on the basis of the transfer fee of EUR 11,000,000 and not EUR 11,578,947.
Therefore, a strict application of the rules regarding solidarity contribution
should be followed and, hence, 5% should have been deducted from the EUR
Solidarity contribution in connection with the player E
(Club A, from country B / Club C, from country D)
6/12
11,000,000 and distributed to the club(s) involved in the player’s training and
education.
13.
To that end and for the sake of good order, the DRC referred again 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 trained and educated by the club(s)
concerned.
14.
In this respect, the members of the Chamber recalled that the Claimant /
Counter-Respondent and the Respondent / Counter-Claimant agreed upon a
transfer compensation amounting to EUR 11,000,000.
15.
Furthermore, the DRC recalled that, according to the player passport issued by
the Football Federation from country U, the player, born on 2 April 1990, was
registered with Club Z as from 18 August 1997 until 21 July 2004, corresponding
to 1 month and 3 full years regarding the seasons of the player’s 12th to 15th
birthday.
16.
In view of the foregoing, the DRC established that Club Z was entitled to 15,41%
of 5% of EUR 11,000,000, i.e. EUR 84,755.
17.
In continuation, the DRC recalled that, according to the player passport issued
by the Football Federation from country B, the player was registered with Club
Y as from 22 July 2004 until 30 June 2008, corresponding to 11 months and 3 full
years regarding the seasons of the player’s 15th to 18th birthday.
18.
In view of the foregoing, the DRC established that Club Y was entitled to 34,58%
of 5% of EUR 11,000,000, i.e. EUR 190,190, only.
19.
Having established the aforementioned, and taking into consideration the
information contained in the player passports issued by the Football Federation
from country U and the Football Federation from country B, the DRC pointed
out that, besides Club Z and Club Y, the Claimant / Counter-Respondent was the
only other club involved in the training and education of the player until his
transfer to the Respondent / Counter-Claimant. In continuation, the DRC
stressed that any amount not distributed as solidarity contribution should be
duly paid to the player’s former club, i.e. the Claimant / Counter-Respondent.
Consequently, the members of the Chamber concluded that the remaining part
of the 5% solidarity contribution should be paid to the Claimant / CounterRespondent.
Solidarity contribution in connection with the player E
(Club A, from country B / Club C, from country D)
7/12
20.
In the present matter, the Claimant / Counter-Respondent already received from
the Respondent / Counter-Claimant 100% of the total transfer compensation
agreed upon for the transfer of the player, i.e. EUR 11,000,000. As a result, the
DRC concluded that the Claimant also received 100% of the 5% solidarity
contribution that is to be distributed to the club(s) involved in the player’s
training and education.
21.
In view of all the above, the DRC rejected the claim of the Claimant.
22.
Having established the aforementioned, the Chamber turned its attention to
the counterclaim lodged by the Respondent / Counter-Claimant on 27 January
2014.
23.
In this context, the DRC observed that the Respondent / Counter-Claimant had
received various claims for the payment of the solidarity contribution after
which it had distributed the total amount of EUR 83,102.73 to the club from
country U, Club Z, as well as the total amount of EUR 191,897.26 as solidarity
contribution to the club from country B, Club Y, which were involved in the
training and education of the player.
24.
The Chamber noted that, on account of the above, the Respondent / CounterClaimant requested that the Claimant / Counter-Respondent would reimburse
the amount of EUR 550,000 (5% of EUR 11,000,000) to the Respondent /
Counter-Claimant.
25.
In this context, the Chamber referred to the well-established jurisprudence of
the DRC with regard to cases in which the player’s new club does not withhold
5% of the agreed transfer compensation when paying such transfer
compensation, but nevertheless is asked to distribute solidarity contribution to
the player’s training clubs. To clarify, according to the mentioned jurisprudence,
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. 21 and 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.
26.
As a consequence, the Chamber considered that the Respondent / CounterClaimant, in the present case and considering that it was undisputed that the
Respondent / Counter-Claimant had 1) paid the full amount of EUR 11,000,000
to the Claimant / Counter-Respondent, 2) had distributed the amounts of EUR
191,897.26 and EUR 83,102.73 as solidarity contribution to Club Y and Club Z
respectively and 3) had not yet been reimbursed with the same amounts by the
Claimant / Counter-Respondent, is in principle entitled to the reimbursement by
Solidarity contribution in connection with the player E
(Club A, from country B / Club C, from country D)
8/12
the Claimant / Counter-Respondent of the amounts the Respondent / CounterClaimant effectively paid as solidarity contribution in accordance with the
applicable Regulations, provided that the correct calculations have been made
by the Respondent / Counter-Claimant when distributing the relevant amounts.
27.
At this point, the members of the Chamber turned their attention to the content
of the transfer agreement, and recalled that the Claimant / Counter-Respondent
and the Respondent / Counter-Claimant had agreed upon a transfer
compensation of EUR 11,000,000, payable in three instalments. As a
consequence, and in line with art. 2 par. 1 of Annexe 5 of the Regulations, the
Respondent / Counter-Claimant conducted the payments of the solidarity
contribution to Club Y and Club Z equally in three instalments. More in
particular, from the aforementioned documentation submitted by the
Respondent / Counter-Claimant, the members of the Chamber noted that the
Respondent / Counter-Claimant had paid the amounts of EUR 78,503.42, EUR
61,058.22 and EUR 52,335.62 to Club Y on 26 October 2011, 25 September 2012
and 20 August 2013 respectively. Furthermore, the Respondent / CounterClaimant had paid the amounts of EUR 33,996.57, EUR 26,441.78 and EUR
22,664.38 to Club Z on 8 November 2011, 25 September 2012 and 20 August
2013 respectively.
28.
As a consequence, the Chamber deemed that, the counterclaim having been
lodged on 27 January 2014 only, the claim relating to the reimbursement of the
solidarity contribution pertaining to the first instalment of the transfer
compensation, paid to Club Y and Club Z on 26 October 2011 and 8 November
2011 respectively, must be considered barred by the statute of limitations in
accordance with art. 25 par. 5 of the Regulations.
29.
Having established the aforementioned, the DRC referred to parr. 16 and 18 in
which it had established the proper calculation of the relevant proportions of
solidarity contribution due to Club Z and Club Y respectively. However, the DRC
recalled that the claim relating to the reimbursement of the solidarity
contribution pertaining to the first instalment of the transfer compensation is
time-barred. As a consequence, the DRC established that the Respondent /
Counter-Claimant is entitled to reimbursement of the solidarity contribution
pertaining to the second and third instalment only.
In view of the foregoing, taking into consideration the solidarity contribution
that was effectively paid by the Respondent / Counter-Claimant to Club Z, the
DRC established that the Claimant / Counter-Respondent has to reimburse to the
Respondent / Counter-Claimant the amount of EUR 49,106.16.
30.
31.
In continuation, the DRC established that the Claimant / Counter-Respondent
has to reimburse to the Respondent / Counter-Claimant 34,58% of 5% of EUR
3,500,000, equivalent to EUR 60,515, as well as 34,58% of 5% of EUR 3,000,000,
Solidarity contribution in connection with the player E
(Club A, from country B / Club C, from country D)
9/12
equivalent to EUR 51,870, leaving a total amount of EUR 112,385, in view of the
solidarity contribution paid by the Respondent / Counter-Claimant to Club Y.
32.
On account of all the above, the DRC decided that the total amount to be
reimbursed by the Claimant / Counter-Respondent to the Respondent / CounterClaimant is EUR 161,491.16.
33.
Lastly, the DRC referred to art. 18 par. 1 of the Procedural Rules, according to
which, in proceedings before the DRC relating to disputes regarding training
compensation and the solidarity mechanism, costs in the maximum amount of
CHF 25’000 are levied. It is further stipulated that the costs are to be borne in
consideration of the parties’ degree of success in the proceedings and, in
accordance with Annexe A of the Procedural Rules, the costs of the proceedings
are to be levied on the basis of the amount in dispute.
34.
In respect of the above, the DRC held that the amount to be taken into
consideration in the present proceedings is EUR 181,577 related to the claim of
the Claimant / Counter-Respondent as well as EUR 550,000 related to the
counter-claim of the Respondent / Counter-Claimant. Consequently, the DRC
concluded that the maximum amount of costs of the proceedings corresponds
to CHF 25,000 (cf. table in Annexe A of the Procedural Rules).
35.
As a result, considering the complexity of the case at hand, the DRC determined
the final costs of the current proceedings to the amount of CHF 24,000, of which
the amount of CHF 12,000 shall be borne by the Claimant / Counter-Respondent
and the amount of CHF 12,000 shall be borne by the Respondent / CounterClaimant.
*****
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant / Counter-Respondent, Club A, is rejected.
2.
The counter-claim of the Respondent / Counter-Claimant, Club C, is partially
accepted insofar as it is admissible.
3.
The Claimant / Counter-Respondent has to reimburse the amount of EUR
161,491.16 to the Respondent / Counter-Claimant within 30 days as from the
date of notification of this decision.
Solidarity contribution in connection with the player E
(Club A, from country B / Club C, from country D)
10/12
4.
If the aforementioned sum is not paid by the Claimant / Counter-Respondent
within the aforementioned deadline, interest at the rate of 5% p.a. will fall due
as of expiry of the stipulated time limit and the present matter shall be
submitted, upon request, to FIFA’s Disciplinary Committee for its consideration
and a formal decision.
5.
The final costs of the proceedings in the amount of CHF 24,000 are to be paid
within 30 days as from the date of the notification of the present decision as
follows:
5.1.
The amount of CHF 12,000 has to be paid by the Respondent / CounterClaimant.
5.2.
The amount of CHF 12,000 has to be paid by the Claimant / CounterRespondent. Given that the Claimant / Counter-Respondent has already
paid the amount of CHF 5,000 as advance of costs at the start of the
present proceedings, the additional amount of CHF 7,000 has to be paid
by the Claimant / Counter-Respondent to FIFA.
5.3.
The above-mentioned amounts have to be paid to FIFA to the following
bank account with reference to case nr.:
UBS Zurich
Account number 366.677.01U (FIFA Players’ Status)
Clearing number 230
IBAN: CH27 0023 0230 3666 7701U
SWIFT: UBSWCHZH80A
6.
The Respondent / Counter-Claimant is directed to inform the Claimant / CounterRespondent immediately and directly of the account number to which the
remittance under point 3. above is to be made and to notify the Single Judge of the
Players’ Status Committee 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
Solidarity contribution in connection with the player E
(Club A, from country B / Club C, from country D)
11/12
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
Enclosed: CAS directives
Solidarity contribution in connection with the player E
(Club A, from country B / Club C, from country D)
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