Solidarity Contribution
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 18 August 2016,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
Joaquim Evangelista (Portugal), member
Johan van Gaalen (South Africa), member
Todd Durbin (USA), member
Zola Majavu (South Africa), member
on the claim presented by the club,
Club A, country B
as Claimant
against the club,
Club C, country D
as Respondent
regarding a solidarity contribution dispute related to the transfer of the player
Player E
I. Facts of the case
1. According to the player passport issued by the Football Association of country B,
the player, Player E (hereinafter: the player), born on 14 April 1984, was registered
with its affiliated club, Club A (hereinafter: Club A or the Claimant), as follows:
Club
From
To
Club A
23 February 2001
12 July 2006
Club A
1 July 2007
16 January 2008
Status
Amateur until the season
2002, professional as from
the season 2003-2004
Professional
2. The sporting season in country B runs as follows: a) for amateurs (under 20 years of
age) from January until December of the relevant year and b) for amateurs (more
than 20 years of age) and professionals from 1 July until 30 June of the following
year.
3. The Football Association of country D confirmed that the player was registered
with its affiliated club, Club C (hereinafter: the Respondent) on 12 February 2014.
4. According to the information contained in the Transfer Matching System (TMS),
the club from country F, Club G (hereinafter: Club G), and the Respondent agreed,
on 28 January 2014, on the transfer of the player to the latter for the amount of
EUR 7,500,000 “net of taxes or any other retention or deduction”, payable until 12
February 2014.
5. Moreover, Club G and the Respondent agreed upon the following:
“2.1.1. The amount agreed as training compensation and/or solidarity mechanism
shall be paid equally.
2.1.2. Since Club G is responsible for distributing the amount due as solidarity
mechanism to the player’s former clubs, [the Respondent], in this act, agrees to pay
Club G the amount corresponding to half of the solidarity contribution. [EUR]
187,500.”
6. On 3 August 2015, the Claimant lodged a claim in front of FIFA, which was finally
completed on 9 December 2015. In particular, the Claimant requested its
proportion of the solidarity contribution in connection with the aforementioned
transfer, for the alleged amount of EUR 7,000,000. In particular, the Claimant
requested the payment of 3.47% of the total transfer amount or EUR 242,900 plus
“interests and costs”. After having been informed of the financial details of the
transfer, the Claimant amended its claim requesting 3.47% of the transfer
compensation of EUR 7,500,000.
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Distribution of the Solidarity Contribution for the Player E
(Club A, country B / Club C, country D)
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7. On 18 March 2016, the Respondent provided its reply and confirmed that the
transfer amount was settled in the sum of EUR 7,500,000, but explained that,
according to the contract, a copy of which it provided Club G is responsible for the
distribution of the solidarity contribution and that, consequently, it paid the
amount of EUR 187,500 to the latter (i.e. half of the total solidarity contribution).
Therefore, Club C requested FIFA “to let Club G distribute the solidarity
contribution to [the Claimant]”.
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 3 August
2015. Consequently, the 2015 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 2015 edition
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 2016), 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. 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 2012, 2014, 2015
and 2016), and considering that the player was registered with the Respondent on
12 February 2014, the 2012 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, 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.
5. First of all, the DRC took note that the Claimant requested 3.47% of the transfer
compensation as solidarity contribution from the Respondent in relation with the
transfer of the player from Club G to the Respondent.
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Distribution of the Solidarity Contribution for the Player E
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6. Equally, the DRC took note that, on 18 March 2016, the Respondent stated that it
had already paid the transfer compensation as well as half of the solidarity
contribution to Club G, and requested FIFA “to let distribute the solidarity
contribution to [the Claimant]”, on the grounds of the stipulations contained in
clauses 2.1.1. and 2.1.2 of the relevant transfer contract.
7. Having established the above, the DRC recalled the contents of said clauses, and
observed that Club G and the Respondent agreed to equally pay the amounts
pertaining to the solidarity contribution to the player’s former clubs.
8. In this respect, the Chamber wished to refer the parties to the content of art. 1 of
Annexe 5 of the Regulations, which 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 and distributed by the new club as a solidarity contribution to
the club(s) involved in his training and education over the years” (emphasis
added).
9. Furthermore, 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.
10. Notwithstanding the above, the Chamber considered of utmost importance to
verify if the Respondent’s request to involve Club G in the procedure was
compliant with the provisions set forth in art. 25 par. 5 of the Regulations, which
reads as follows:
“The Players’ Status Committee, the Dispute Resolution Chamber, the single judge
or the DRC judge (as the case may be) shall not hear any case subject to these
regulations if more than two years have elapsed since the event giving rise to the
dispute. Application of this time limit shall be examined ex officio in each
individual case.”
11. Moreover, the members of the Chamber also observed the provisions contained in
art. 2 par.1. of Annexe 5 of the Regulations, according to which as a general rule,
the solidarity contribution is payable no later than 30 days after the player’s
registration with the new club. Within the context of the current dispute, the
members of the Chamber observed that the player was registered with the
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Distribution of the Solidarity Contribution for the Player E
(Club A, country B / Club C, country D)
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Respondent on 12 February 2014 and, consequently the solidarity contribution
would be payable at the latest on 15 March 2014.
12. Whereas, on the basis of what is mentioned in the previous paragraphs, more than
two years elapsed between the event that giving rise to the dispute (i.e. the
deadline for the payment of the solidarity contribution on 15 March 2014) and the
date of the Respondent’s request before FIFA (i.e., 18 March 2016), the members
of the Chamber observed that said request was not compliant with the provisions
set forth in art. 25 par. 5 of the Regulations. In other words, the members of the
Chamber observed that said request was time-barred, and consequently decided
that it was inadmissible.
13. As a result, and in the light of the previous considerations, the members of the
Chamber unanimously agreed that the Respondent is, in principle, to be held liable
for the payment of the solidarity contribution to the Claimant.
14. In this respect, the DRC noted that the Claimant claimed the payment of solidarity
contribution from the Respondent, corresponding to 3.47% of the transfer
compensation paid by the Respondent for the transfer of the player.
15. In addition to the above, the DRC took into account that according to the
information contained in the Transfer Matching System, Club G and the
Respondent agreed upon a transfer compensation of EUR 7,500,000.
16. Furthermore, the DRC duly noted that the Respondent never took position as to
the specific calculation of the solidarity contribution, although having been invited
to do so by FIFA.
17. Having established the above, the DRC referred again to art. 21 of the Regulations
in combination with art. 1 of Annexe 5 of the Regulations which establish 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.
18. In this respect, the DRC recalled that the Football Association of country B had
confirmed that the player, born on 14 April 1984, was registered with the Claimant
as from 23 February 2001 until 12 July 2006, and as from 1 July 2007 until 16
January 2008.
19. In this respect, the Chamber wished to underline that, notwithstanding the above,
the period comprised between 1 July 2007 until 16 January 2008 would correspond
to the season of the player’s 24th birthday. Thus, the Chamber pointed out that
said period cannot be taken into account in order to determine the amount due as
solidarity contribution.
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Distribution of the Solidarity Contribution for the Player E
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20. 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 comprised between 23 February 2001 until 12
July 2006 only.
21. Therefore, 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. In
terms of the percentage of the 5% solidarity contribution, the Chamber calculated
that, on a pro rata basis, this corresponds to 58.33% of the 5% of the total transfer
amount.
22. In application of the relevant calculation, the DRC decided to partially accept the
claim of the Claimant and held that the Respondent is liable to pay the amount of
EUR 218,737.50 to the Claimant as solidarity contribution in relation to the transfer
of the player from Club G to the Respondent.
23. In addition, and taking into account the Claimant’s request and its own
jurisprudence, the DRC decided to grant 5% interest p.a. over said amount as from
the date of the claim.
24. 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.
25. In respect of the above, the DRC held that the amount to be taken into
consideration in the present proceedings is EUR 242,900 related to the percentage
claimed by the Claimant. 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).
26. As a result, considering the complexity of the case at hand as well as that the claim
of the Claimant has been partially accepted, the DRC determined the final costs of
the current proceedings to the amount of CHF 20,000. In particular, the DRC
determined that the Respondent shall pay the amount of CHF 18,000, whereas the
amount of CHF 2,000 shall be borne by the Claimant.
27. The Dispute Resolution Chamber concluded its deliberations in the present matter
by establishing that any further claims lodged by the Claimant are rejected.
*****
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Distribution of the Solidarity Contribution for the Player E
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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 as from the
date of notification of this decision, the amount of EUR 218,737.50 plus 5%
interest p.a. as of 3 August 2015 until the date of effective payment.
3. In the event that 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 is rejected.
5. The final costs of the proceedings in the amount of CHF 20,000 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 15,000 has to be paid by the Respondent to FIFA to the
following bank account with reference to case nr. xxxxxxxxxxxxxxxx:
UBS Zurich
Account number 366.677.01U (FIFA Players’ Status)
Clearing number 230
IBAN: CH27 0023 0230 3666 7701U
SWIFT: UBSWCHZH80A
5.2. The amount of CHF 3,000 has to be paid by the Respondent directly to the
Claimant.
5.3. The amount of CHF 2,000 has to be paid by the Claimant to FIFA. Given that
the Claimant has already paid the amount of CHF 5,000 as advance of costs at
the beginning of the dispute, no procedural costs are due by the Claimant.
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Distribution of the Solidarity Contribution for the Player E
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6. The Claimant is directed to inform the Respondent immediately and directly of the
account number to which the remittance under point 2. 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 (CAS)
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 Dispute Resolution Chamber:
Marco Villiger
Deputy Secretary General
Enclosed: CAS directives
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Distribution of the Solidarity Contribution for the Player E
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