Solidarity Contribution
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 10 August 2018,
in the following composition:
Geoff Thom ps on (England), Chairman (did not take part in the deliberations)
Carlos González Puche (Colom bia), member
Eirik Mons en (Norw ay ), member
Juan Batis ta Mahiques (Argentina), member
Daan de Jong (The Netherlands ), member
on the matter between the club,
Club A, Country B,
as Claimant
and the club,
Club C, Country D
as Respondent
and the club,
Club E, Country F
as Intervening party I
and the club,
Club G, Country H
as Intervening party II
regarding solidarity contribution in connection with the transfer
of the player, Player J
I.
Facts of the cas e
1.
According to the player passport issued by the Football Federation of
Country B (Football Federation K) on 19 September 2016, the player, Player
J (hereinafter: the player), born on 10 May 1987, was registered with Club A
(hereafter: Club A) as from 1 March 2001 until 28 February 2005. In this
respect, Club A had previously submitted several player passports, all of
them containing discrepant information regarding the player’s career. After
being asked by FIFA to clarify this issue, Club A submitted a declaration of
the Football Federation K dated 12 October 2017, in which it is confirmed
that the player passport dated 19 September 2016 is ‘the most reliable and
valid’. Further, the Football Federation K explained that the differences in
the several player passports occurred because the Football Federation K ‘is
yet to have a registration system’ and it updates player passports ‘when we
get new and valid information on the player’s playing history’.
2.
The football season in Country B, during the period in which the player was
allegedly registered with Club A, followed the calendar year.
3.
According to the information contained in the Transfer Matching System
(TMS), on 8 July 2015, the Club of Country F, Club E (hereafter: Club E)
loaned the player to the Club of Country H, Club G (hereinafter: Club G)
from 1 July 2015 until 30 June 2016. However, on 31 January 2016, Club E
concluded a transfer agreement with Club G and with the Club of Country
D, Club C (hereafter: Club C) regarding the transfer of the player to Club C.
According to article 1.4 of said transfer agreement, it was agreed that ‘the
further temporary transfer of the registration of the player shall occur
directly from Club G to Club C (as opposed to the Player’s registration
reverting from Club G to Club E before a future transfer of the registration
from Club E to Club C) […]’.
4.
In order to transfer the loan of the player to Club C, all parties involved, i.e.
Club E, Club G and Club C agreed upon a transfer compensation amounting
to EUR 1,555,555, payable as follows:
-
an amount of EUR 555,555 to be paid by Club C to Club G, as
compensation for the early termination of the loan of the player at
Club G, due ‘within 14 days of the satisfaction’ of several conditions,
the most relevant ones being the issuing of the player’s ITC as well as
the player being registered and eligible to play for Club C;
Solidarity contribution for the player, Player J (Club A, Country B / Club C, Country D / Club E, Country F / Club G, Country H)
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an amount of EUR 1,000,000 to be paid by Club C to Club E, as
transfer compensation for the loan transfer of the player to Club C,
payable in five instalments, as follows:
EUR 200,000 due on 5 February 2016;
EUR 200,000 due on 5 March 2016;
EUR 200,000 due on 5 April 2016;
EUR 200,000 due on 5 May 2016;
EUR 200,000 due on 5 June 2016.
5.
Furthermore, Club E and Club C agreed upon in a separate transfer
agreement dated 31 January 2016 on the following clause: ‘It is
acknowledged that Club C shall make no deductions from the sums payable
to Club E hereunder in respect of solidarity contribution under article 21
and Annex 5 of […] the FIFA Regulations. It is however further agreed that
Club E shall be solely responsible without any contribution from Club C for
the distribution of the solidarity due to any and all clubs, teams, national
associations or other entities […] under the FIFA Regulations […] Club E
shall indemnify Club C immediately on demand in an amount at least equal
to any solidarity (and interest thereon) which Club C is required to pay to
any Claimant in respect of the Player, […] as a result of any failure by Club E
to have distributed to requisite Solidarity in accordance with this clause’.
6.
In addition, Club G and Club C in a separate agreement dated also 31
January 2016 agreed upon the following clause: ‘It is acknowledged that
Club C shall make no deductions from the sum payable to Club G hereunder
in respect of solidarity contribution under article 21 and Annex 5 of […] the
FIFA Regulations. It is however further agreed that Club G shall be solely
responsible without any contribution from Club C for the distribution of the
solidarity due to any and all clubs, teams, national associations or other
entities […] under the FIFA Regulations […] Club G shall indemnify Club C
immediately on demand in an amount at least equal to any solidarity (and
interest thereon) which Club C is required to pay to any Claimant in respect
of the Player, […] as a result of any failure by Club E to have distributed to
requisite Solidarity in accordance with this clause’.
7.
According to TMS, the player was registered with Club C on 2 February 2016
and his ITC was issued on 1 February 2016.
Solidarity contribution for the player, Player J (Club A, Country B / Club C, Country D / Club E, Country F / Club G, Country H)
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8.
On 9 October 2017, Club A lodged a claim in front of FIFA claiming its
proportion of the solidarity contribution in connection with the transfer of
the player from Club G to Club C.
9.
In particular, Club A requests 30% of 5% of the alleged transfer
compensation of EUR 1,000,000, plus 15% interest p.a. as from the due
date, as well as the amount of 10,000 as ‘cost of litigation/legal fees’.
10.
In its reply to Club A’ claim, Club C explains that it concluded two separate
agreements in order to facilitate the loan transfer of the player to its club.
Moreover, Club C confirms to have paid an amount of EUR 555,000 to Club
G, as well as an amount of EUR 1,000,000 to Club E. Moreover, Club C
explains that these amounts were to be considered as net amounts, because
‘the other club did not permit Club C to deduct any sums for Solidarity
Contribution from the fees payable and instead agreed to be responsible
for such payments from the fees received’.
11.
In addition, Club C further explains that it is aware of the fact that in
principle, the player’s new club would be responsible for the distribution of
the solidarity contribution, but that in this specific case, Club G and Club E
should be ‘obliged to settle such claims’.
12.
After Club C, Club G and Club E were informed about the jurisprudence of
FIFA in matters like the case at hand, the following statements were
received from the respective parties:
Club C explained that it received correspondence from Club A, in which it
was explained that Club G already distributed the solidarity contribution
to Club A. Furthermore, it reiterates its previous arguments and asks for
the rejection of Club A’ claim, as it should turn to Club E and Club G;
Club G explained that it was responsible for the payment of solidarity
contribution in connection with the transfer of the player from Club G to
Club C, and explained that it already paid said amount to Club A;
Club E confirmed that it agreed upon a transfer fee of EUR 1,000,000 for
the loan of the player to Club C, however further brought forward the
following arguments:
-
Club C, as the player’s new club, is responsible for the payment of
the solidarity contribution. In this respect, Club E explained that it
may reimburse the amounts it had to pay ‘in accordance with the
Agreement concluded between Club E and Club C’.
Solidarity contribution for the player, Player J (Club A, Country B / Club C, Country D / Club E, Country F / Club G, Country H)
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Further, Club E referred to a case with reference number XXX,
currently pending before FIFA’s DRC (Claimant: Club A, Respondent:
Club E), in connection with the transfer of the player from the Club
of Country L, Club M to Club E in August 2013. Club E explains that
in said case, it contested the validity of several player passports
submitted by the Claimant, as they contain contradictory
information regarding the player’s career. In this respect, Club E
submitted a declaration of the player dated 20 September 2013, in
which it is confirmed that he ‘never played in Club N in my football
career’.
-
Finally, Club E argues that it deems that Club A’ claim is timebarred.
13.
Despite being invited to do so, Club A did not submit its replica.
II.
Cons iderations of the Dis pute Res olution Cham ber
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, the Chamber took note that the present matter was submitted to FIFA on 9
October 2017. Consequently, the Rules governing the procedures of the Players’
Status Committee and the Dispute Resolution Chamber (edition 2017; hereinafter:
Procedural Rules) are 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 conjunction
with art. 22 lit. d) of the Regulations on the Status and Transfer of Players (edition
2018), the Dispute Resolution Chamber is competent to decide on the present
matter, which concerns a dispute relating to the solidarity mechanism involving four
clubs belonging to different associations.
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 members referred, on the one hand, to art. 26 par. 1 and 2 of the
Regulations on the Status and Transfer of Players (editions 2015, 2016 and 2018)
and, on the other hand, to the fact that the present claim was lodged on 9 October
2017 and that the player was registered with Club C on 2 February 2016. In view of
the aforementioned, the Chamber confirmed that the 2015 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. In addition, taking into
Solidarity contribution for the player, Player J (Club A, Country B / Club C, Country D / Club E, Country F / Club G, Country H)
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consideration the aforementioned dates of the claim and the registration of the
player, as well as the objection of Club E in point I.12 above in fine, the DRC
confirmed that the claim of Club A was lodged within the period of 2 years as from
the fact giving right to the dispute – i.e. the due dates of the contingent payments
plus 30 days –, in accordance with art. 25 par. 5 of the Regulations as well as art. 2
par. 1 of Annexe 5 of the Regulations.
4.
The competence of the DRC and the applicable regulations having been established,
the DRC entered into the substance of the matter. In this respect, the Chamber
started by acknowledging all the above-mentioned 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.
5.
In this respect, the DRC noted that Club A claimed the payment of the amount of
EUR 15,000 as solidarity contribution from Club C, corresponding to 30% of the 5%
solidarity contribution of a total transfer fee of EUR 1,000,000.
6.
In addition to the above, and referring to art. 6 par. 3 of Annexe 3 of the
Regulations, the Chamber took into account that according to the information
contained in the TMS, the player was loaned from Club E to Club G, however that it
was agreed upon between the parties that the loan of the player would be
transferred to Club C. In order to facilitate said loan, Club E, Club G and Club C
agreed upon a transfer compensation amounting to EUR 1,555,555, as follows: (i) an
amount of EUR 555,555 to be paid by Club C to Club G, as compensation for the
early termination of the loan of the player at Club G, due on 2 February 2016, as
well as (ii) an amount of EUR 1,000,000 to be paid by Club C to Club E, as transfer
compensation for the loan transfer of the player to Club C, payable in five
instalments of EUR 200,000 each, due on 5 February 2016, 5 March 2016, 5 April
2016, 5 May 2016 and 5 June 2016.
7.
Furthermore, the DRC noted that Club C argued that it is aware that in principle,
the player’s new club would be responsible for the distribution of the solidarity
contribution, but that in this specific case, with respect to the claim lodged by Club
A, Club G and Club E should be ‘obliged to settle such claims’.
8.
What is more, the DRC also took note that Club G was of the opinion that it should
not be involved in the matter at hand, as it already paid the relevant part of the
solidarity contribution to Club C. Moreover, the Chamber noted that Club E is of the
opinion that Club C, as the player’s new club, is responsible for the payment of the
solidarity contribution as well as that the several player passports submitted by Club
A contain contradictory information regarding the player’s career, making the latter
uncertain.
Solidarity contribution for the player, Player J (Club A, Country B / Club C, Country D / Club E, Country F / Club G, Country H)
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9.
In view of the above, the Chamber deemed fundamental to refer to the timeline of
the events occurred in the present proceedings in order to determine whether Club
A is in fact entitled to solidarity contribution. First of all, the DRC recalled that,
when lodging its initial claim on 9 October 2017, Club A submitted 3 different
player passports, respectively dated 17 April, 24 April and 19 September 2016, all
containing different information regarding the player’s career and the clubs with
which he was registered. Whereas the first two player passports do not contain any
record of Club A at all, only in the third player passport, issued on 19 September
2016, i.e. more than 7 months after the transfer on loan basis of the player to Club
C, Club A was mentioned as one of the player’s previous clubs, which apparently
had trained him during a specific period of time.
10.
In continuation, the members of the Chamber took due note that, according to the
aforementioned passports, on 2 February 2016, the day on which the player was
transferred on loan basis to Club C, no information regarding a possible registration
of the player with Club A was available to the parties involved.
11.
Moreover, turning its attention to the claim of Club A 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 and considering the claim of Club A, the
Chamber underscored that it was for Club A to prove that the player was indeed
registered with its club. In this respect, the members of the Chamber evaluated the
documentation on file and were of the opinion that, apart from 3 player passports
with contradictory information and a general statement of the Football Federation
K issued only subsequently, Club A did not submit any further documentation
supporting the allegation that the player had indeed played for the club. As a
result, the members of the Chamber deemed that Club A failed to submit
convincing documentary evidence, demonstrating that the player was indeed
registered for its club, and for which period of time.
12.
In view of the aforementioned, the DRC carefully considered that by the time the
player was transferred on loan to Club C, the latter club could not have been aware
of any possible obligations to pay solidarity contribution to Club A, as said club was
only mentioned for the first time by the Football Federation K in a player passport
dated 19 September 2016. Consequently, the Chamber unanimously decided that
Club C could not be obliged to pay solidarity contribution as the player’s career, in
particular his registration with Club A, could not be established with full certainty
based on the documentation on file.
Solidarity contribution for the player, Player J (Club A, Country B / Club C, Country D / Club E, Country F / Club G, Country H)
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13.
In view of all the above, the Dispute Resolution Chamber rejected Club A’s claim for
solidarity contribution, due to the lack of consistent and clear documentary
evidence allowing this Chamber to establish beyond doubt his registration with the
claimant and, if so, to subsequently calculate any amount of solidarity contribution
possibly due.
14.
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 levied. The
costs are to be borne in consideration of the parties’ degree of success in the
proceedings.
15.
In this respect, the Chamber reiterated that the claim of Club A is rejected and
established that as a result, Club A has to bear the costs of the current proceedings
in front of FIFA.
16.
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.
17.
The amount in dispute to be taken into consideration in the present proceedings
amounts to EUR 15,000 related to the claim of Club A. Therefore, the Chamber
concluded that the maximum amount of costs of the proceedings corresponds to
CHF 5,000 (cf. table in Annexe A).
18.
Considering that the case at hand showed very particular factual difficulties and
some legal complexity, as well as the fact that the claim of Club A is fully rejected,
the Chamber determined the final amount of costs of the current proceedings to
the amount of CHF 5,000, which shall be entirely borne by Club A.
19.
In view of all of the above, the Chamber concluded that the amount of CHF 5,000
has to be paid by Club A 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 5,000 are to be paid by the
Claimant, w ithin 30 day s of notification of the present decision, to FIFA to the
following bank account with reference to case no. XXX:
Solidarity contribution for the player, Player J (Club A, Country B / Club C, Country D / Club E, Country F / Club G, Country H)
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UBS Zurich
Account number 366.677.01U (FIFA Players’ Status)
Clearing number 230
IBAN: CH 27 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
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 for the player, Player J (Club A, Country B / Club C, Country D / Club E, Country F / Club G, Country H)
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