Solidarity Contribution
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 24 August 2018,
in the following composition:
Geoff Thom ps on (England), Chairman
Johan v an Gaalen (S outh Africa), member
Joaquim Ev angelis ta (Portugal), member
Todd Durbin (US A), member
S tefano La Porta (Italy ), member
on the claim presented by the club,
Club A, Country B
as Claimant
against the club,
Club C, Country D
as Respondent
regarding solidarity contribution in relation to the
player, Player E
I.
Facts of the cas e
1.
The Football Federation of Country B issued the following player passports in
connection with the player of Country B, Player E, born on 10 May 1987
(hereinafter: player):
a.
b.
c.
d.
e.
Passport 1: dated 10 August 2013, in accordance with which the player was
registered with the club, Club F, as from 10 May 1999 until 31 December 2007;
Passport 2: no date of issuance, in accordance with which the player was
registered with the Football Federation of Country B, without club indication,
as from 10 May 1999 until 31 December 2002 and with the Club F as from 1
January 2003 until 31 December 2007;
Passport 3: dated 17 April 2014, in accordance with which no records were
available to the Football Federation of Country B for the seasons 1999-00 to
2003-04 and the player was registered with the Club F as from 1 June 2005
until 31 May 2007;
Passport 4: dated 24 April 2014, in accordance with which no records were
available to the Football Federation of Country B for the seasons 1999-00 to
2003-04 and the player was registered with the Club F as from 1 March 2005
until 31 December 2007;
Passport 5: dated 19 September 2016, in accordance with which no records
were available to the Football Federation of Country B for the seasons 199900 and 2000-01 and the player was registered with the Club A as from 1
March 2001 until 28 February 2005 and with Club F as from 1 March 2005
until 31 December 2007.
2.
The Football Federation of Country B confirmed the following details regarding
the sporting seasons in Country B:
until 2005 the season ran as from 1 July to 30 June of the following year;
as from 2005, the season ran from 1 January until 31 December;
as from 2007-08, the season ran again as from 1 July until 30 June, with the
2007 season running for six months (January to June 2017).
3.
According to the information contained in the Transfer Matching System (TMS),
the club of Country G, Club H and the club of Country D, Club C (hereinafter:
Respondent), inter alia, agreed upon a compensation for the transfer of the player
in the amount of EUR 13,000,000, payable by the Respondent in two instalments as
follows: EUR 6,000,000 on 14 August 2013 and EUR 7,000,000 on 31 August 2014.
4.
The Football Federation of Country D confirmed that the player was registered
with the Respondent, after being transferred from Club H, on 12 August 2013.
5.
On 29 August 2014 and completed on 20 September 2016, the club of Country B,
Club A (hereinafter: Claimant) lodged a claim in front of FIFA against the
Respondent, claiming its proportion of solidarity contribution in connection with
the transfer of the player from Club H to the Respondent and requested 35% of
5% of the transfer compensation. The Claimant further requested 15% interest
Solidarity contribution in relation to the player, Player E
Club A, Country B / Club C, Country D
Page 2 of 7
p.a. as of the respective due dates as well as legal fees in the amount of CHF
10,000.
6.
In this respect, the Claimant affirmed having trained the player between 1 January
2002 and 30 December 2005.
7.
In reply to the claim, the Respondent held that the Claimant’s claim is time-barred.
8.
Furthermore, the Respondent stated that following the transfer of the player, it
received several player passports issued by the Football Federation of Country B
with different indications as regards the period of time the player allegedly was
registered with the Claimant, a copy of which it presented. Therefore, the
Respondent wished to assure itself as to which would be the correct player
passport in order to be able to distribute the solidarity contribution in an accurate
manner.
9.
In any event, the Respondent rejected that the Claimant is entitled to interest of
15% p.a.
10.
After closure of the investigation in the matter, the Claimant presented further
unsolicited comments as well as another player passport issued by the Football
Federation of Country B on 29 March 2018, in accordance with which the player
was registered with the Claimant as from 10 May 1999 until 30 June 2007.
II.
Cons iderations of the Dis pute Res olution Cham ber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as
Chamber or DRC) analysed whether it was competent to deal with the matter at
stake. In this respect, the DRC took note that the present matter was submitted to
FIFA on 29 August 2014. Consequently, the DRC concluded that the 2014 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 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 2018) the DRC is competent to deal with the matter at stake, which
concerns a dispute relating to the solidarity mechanism between clubs belonging
to different associations.
3.
In this context and prior to entering into the substance of the present matter, the
members of the DRC recalled that according to the Respondent the claim of the
Claimant is to be considered barred by the statute of limitations. In this respect,
the DRC highlighted that according to art. 25 par. 5 of the Regulations on the
Status and Transfer of Players, the application of the two years’ time limit since the
Solidarity contribution in relation to the player, Player E
Club A, Country B / Club C, Country D
Page 3 of 7
event giving rise to the dispute shall be examined ex officio in each individual case.
The present claim having been lodged in front of the DRC on 29 August 2014 and
the event giving rise to the dispute, that is, the alleged non-payment of solidarity
contribution following the registration of the player with the Respondent on 12
August 2013, the Chamber confirmed that the claim of the Claimant is not barred
by the statute of limitations set out in art. 25 par. 5 of the said Regulations.
4.
In continuation, 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 DRC confirmed that in accordance with art. 26 par. 1 and par. 2 of
the said Regulations (edition 2018) and considering that the player was registered
with the Respondent on 12 August 2013, 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.
5.
The competence of the DRC and the applicable regulations having been
established, the members of the Chamber entered into the substance of the
matter. In this respect, the Chamber started by acknowledging all the abovementioned facts as well as the arguments and the documentation submitted by the
parties. However, the Chamber 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. In this context,
bearing in mind the Chamber’s relevant constant jurisprudence, the Chamber decided
not to take into account the unsolicited comments and documents presented by
the Claimant after the closure of the investigation in the present matter . Indeed,
the Chamber shall take a decision on the basis of those documents on file that were
provided prior to the closure of the investigation by FIFA.
6.
Having said that, the DRC noted that the Claimant claimed, inter alia, the payment
of 35% of 5% of the transfer compensation as solidarity contribution from the
Respondent maintaining that the player was registered with it between 1 January
2002 and 30 December 2005.
7.
Furthermore, the DRC noted that according to the Respondent it had received
various player passports issued by the Football Federation of Country B with
different indications as regards the period of time the player allegedly was
registered with the Claimant.
8.
In continuation, the members of the DRC turned their attention to the various
player passports submitted by the Claimant in support of its claim and concluded
that they contain discrepant information as regards the alleged registration of the
player with the Claimant.
9.
Indeed, according to the first 4 player passports issued by the Football Federation
of Country B between 10 August 2013 and 24 April 2014, the player was either
registered with the club of Country B, Club F, or there were no records available
for the player during the period of time which is at the basis of the Claimant’s
claim, i.e. as from 1 January 2002 until 30 December 2005.
Solidarity contribution in relation to the player, Player E
Club A, Country B / Club C, Country D
Page 4 of 7
10.
At this point, the DRC recalled that the player was registered with the Respondent
on 12 August 2013. Therefore, the Chamber concluded that according to the
official information available around the period of time when the player was
registered with the Respondent, the Claimant did not appear on the player
passports as a former club of the player.
11.
In continuation, the members of the Chamber took due note that only in the
player passport issued on 19 September 2016 was the Claimant indicated as one of
the player’s former clubs.
12.
Turning its attention to the claim of the Claimant and the allegations contained
therein, the Chamber wished to point out that in accordance with the legal
principle of the burden of proof as contained in art. 12 par. 3 of the Procedural
Rules, any party claiming a right on the basis of an alleged fact shall carry the
burden of proof. In view of the foregoing, the Chamber underscored that it was
for the Claimant to prove that the player was indeed registered with its club. In
this respect, the members of the Chamber stressed that in support of its claim the
Claimant had only presented the aforementioned player passports containing
discrepant information regarding the registration of the player in Country B,
including the period of time the player allegedly was registered with the Claimant.
As a result, the members of the Chamber deemed that the Claimant failed to
submit convincing documentary evidence, demonstrating that the player was
indeed registered for its club, and for which period of time.
13.
In view of the aforementioned, the DRC considered that by the time the player was
transferred to the Respondent in August 2013, the latter could not have been
aware of any possible obligations to pay solidarity contribution to the Claimant, as
the latter was only mentioned for the first time by the Football Federation of
Country B in a player passport issued on 19 September 2016. Consequently, the
Chamber unanimously decided that the Respondent cannot be obliged to pay
solidarity contribution to the Claimant as the player’s career, in particular his
registration with the Claimant, could not be established with full certainty based
on the documentation on file.
14.
In view of all the above, the Dispute Resolution Chamber rejected the Claimant’s
claim for solidarity contribution, due to the lack of consistent and clear
documentary evidence allowing this Chamber to establish beyond doubt the
player’s registration with the Claimant and, if so, to subsequently calculate any
amount of solidarity contribution possibly due.
15.
In continuation, the deciding authority 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 solidarity mechanism costs in the maximum amount of CHF 25,000 are
Solidarity contribution in relation to the player, Player E
Club A, Country B / Club C, Country D
Page 5 of 7
levied. The costs are to be borne in consideration of the parties’ degree of success
in the proceedings.
16.
In this respect, the Chamber reiterated that the claim of the Claimant is rejected
and established that as a result, the Claimant has to bear the costs of the current
proceedings in front of FIFA.
17.
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.
18.
The amount in dispute to be taken into consideration in the present proceedings
amounts to EUR 227,500 related to the claim of the Claimant. Therefore, the
Chamber concluded that the maximum amount of costs of the proceedings
corresponds to CHF 25,000 (cf. table in Annexe A).
19.
Considering that the case at hand showed very particular factual difficulties and
some legal complexity, as well as the fact that the claim of the Claimant is fully
rejected, the Chamber determined the final amount of costs of the current
proceedings to the amount of CHF 25,000, which shall be entirely borne by the
Claimant.
20.
In view of all of the above, the Chamber concluded that the amount of CHF 25,000
has to be paid by the Claimant to cover the costs of the present proceedings.
*****
III.
Decis ion of the Dis pute Res olution Cham ber
1.
The claim of the Claimant, Club A, is rejected.
2.
The final costs of the proceedings in the amount of CHF 25,000 are to be paid by
the Claimant to FIFA, w ithin 30 day s of notification of the present decision, to
the following bank account with reference to case no. XXX:
UBS Zurich
Account number 366.677.01U (FIFA Players’ Status)
Clearing number 230
IBAN: CH27 0023 0230 3666 7701U
SWIFT: UBSWCHZH80A
*****
Note relating to the m otiv ated decis ion (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
Solidarity contribution in relation to the player, Player E
Club A, Country B / Club C, Country D
Page 6 of 7
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:
Omar Ongaro
Football Regulatory Director
Enclosed: CAS directives
Solidarity contribution in relation to the player, Player E
Club A, Country B / Club C, Country D
Page 7 of 7