Solidarity Contribution
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 23 September 2013,
by Theo van Seggelen (the Netherlands), DRC judge,
on the claim presented by the club,
Club F, from country B
as Claimant
against the club,
Club C, from country B
as Respondent
regarding a solidarity contribution dispute in connection with
the international transfer of the player A
I.
Facts of the case
1.
According to the player passport issued by the country B Football
Confederation, Player A, from country B (hereinafter: the player), born in
February 1988, was registered with Club F, from country B (hereinafter: the
Claimant), as from 9 May 2001 until 10 July 2008.
2.
The football seasons in country B during the period of time the player was
registered with the Claimant started on 1 January and ended on 31 December
of each year.
3.
The country B Football Confederation informed FIFA that the player was
registered with its affiliated club, Club C (hereinafter: the Respondent), on 17
January 2013.
4.
According to the Claimant, Club L, country G, concluded in January 2013 a
transfer agreement with the Respondent for the definitive transfer of the
player from Club L to the Respondent.
5.
On 30 April 2013, the Claimant contacted FIFA claiming its proportion of the
solidarity contribution in connection with the transfer of the player concerned
from Club L to the Respondent. In particular, the Claimant requested 58.492%
of 5% of the transfer compensation of EUR 3,500,000, equivalent to EUR
102,361, plus 5% interest as follows:
-
5% p.a. as of 14 February 2013 on the amount of EUR 43,869;
5% p.a. as of 14 August 2013 on the amount of EUR 29,246;
5% p.a. as of 2 March 2014 on the amount of EUR 29,246.
In addition, the Claimant demanded, in case of a subsequent transfer of the
player, 2.9246% of the relevant amount due to Club L, but at least EUR
87,738.
6.
According to the information contained in the Transfer Matching System
(TMS), Club L and the Respondent agreed, inter alia, upon the following:
“2. Transfer sum
Solidarity contribution in connection with the player A
(Club F, from country B / Club C, from country B)
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Club C will pay to Club L a transfer sum in the amount of EUR
3.500.000,-- (in words: Euro three million five hundred thousand)
[…]. This transfer sum is payable […] in three installments [...] as
follows:
due on 15.01.2013: EUR 1.500.000,-due on 15.07.2013: EUR 1.000.000,-due on 31.01.2014: EUR 1.000.000,-[…]
3. Future Transfer and Financial Participation
[…]
In case the player Player A will be transferred to a third club, Club L
is entitled receive 50% of the transfer sum including all payments
related to the transfer, but at least EUR 3.000.000,--. This means, in
case the transfer sum is EUR 3.000.000,-- or lower, Club L will receive
the full amount. In case the transfer sum is EUR 6.000.000,-- or
higher, Club L will receive 50%.
The payment is due within 10 days after execution of the Transfer
Agreement between Club C and the third club and after proper
invoice by Club L.”
7.
Despite having been invited by FIFA to provide its position regarding the
claim, the Respondent did not respond or make any statements at all during
the course of the investigation.
II.
Considerations of the DRC judge
1.
First of all, the Dispute Resolution Chamber (DRC) judge analysed whether he
was competent to deal with the case at hand. In this respect, he took note that
the present matter was submitted to FIFA on 30 April 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 edition of the
Procedural Rules).
2.
Subsequently, the DRC judge referred to art. 3 par. 1 and 2 of the Procedural
Rules and confirmed that in accordance with art. 24 par. 1 and 2 in
combination with art. 22 lit. e) of the Regulations on the Status and Transfer
of Players (edition 2012) the DRC judge is competent to deal with the matter
Solidarity contribution in connection with the player A
(Club F, from country B / Club C, from country B)
3/9
at stake, which concerns a dispute relating to solidarity mechanism based on a
transfer of a player from a country G club to a country B club.
3.
Furthermore, the DRC judge 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, he referred, on the one hand, to art. 26 par. 1 and 2 of
the Regulations on the Status and Transfer of Players (edition 2012) and, on
the other hand, to the fact that the player was registered with the Respondent
on 17 January 2013. In view of the aforementioned, the DRC judge concluded
that 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 judge and the applicable regulations having been
established, the DRC judge entered into the substance of the matter. In doing
so, the DRC judge started by acknowledging the above-mentioned facts of the
case as well as the documents contained in the file.
5.
First of all, the DRC judge noted that the Claimant claimed a proportion of
58.492% of 5% of the transfer compensation of EUR 3,500,000, equivalent to
EUR 102,361, plus interest as follows:
-
5% p.a. as of 14 February 2013 on the amount of EUR 43,869;
5% p.a. as of 14 August 2013 on the amount of EUR 29,246;
5% p.a. as of 2 March 2014 on the amount of EUR 29,246.
6.
Equally, the DRC judge noted that the Claimant demanded, in case of a
subsequent transfer of the player, 2.9246% of the relevant amount due to
Club L, but at least EUR 87,738.
7.
Furthermore, the DRC judge duly noted that the Respondent never took
position in the present matter, although having been invited to do so by FIFA.
Therefore, the DRC judge deemed that, in this way, the Respondent renounced
to its right to defence and accepted the allegations of the Claimant.
8.
As a consequence of the aforementioned consideration, the DRC judge
established that, in accordance with art. 9 par. 3 of the Procedural Rules, it
shall take a decision upon the basis of the documents already on file, i.e. upon
the statements and documents provided by the Claimant as well as upon the
information contained in the TMS.
Solidarity contribution in connection with the player A
(Club F, from country B / Club C, from country B)
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9.
Having established the above, the DRC judge 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.
10.
In this respect, the DRC judge recalled again that the Respondent had not
replied to the claim of the Claimant and therefore ruled that the Respondent
did not provide any argument which would justify the non-payment of the
proportion of solidarity contribution to the Claimant.
11.
Subsequently, the DRC judge considered that it had to determine what should
be the relevant amount of solidarity contribution that has to be paid by the
Respondent to the Claimant. In this regard, the DRC judge went on to establish
the proper calculation of the relevant proportion of solidarity contribution due
to the Claimant.
12.
To that end, the DRC judge referred 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 training and educated by the club(s) concerned.
13.
In this respect, the DRC judge recalled that, according to the player passport
issued by the country B Football Confederation, the player, born in February
1988, was registered with the Claimant as from 9 May 2001 until 10 July 2008.
14.
On account of the above and in accordance with art. 1 of Annexe 5 of the
Regulations, the DRC judge considered that the Claimant is, thus, entitled to
receive solidarity contribution for the period as from 9 May 2001 until 10 July
2008, i.e. for 8 months of the season of the player’s 13th birthday, the full
seasons of the player’s 14th until 19th birthday as well as 6 months of the season
of the player’s 20th birthday. 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 5%.
Solidarity contribution in connection with the player A
(Club F, from country B / Club C, from country B)
5/9
15.
Furthermore, the DRC judge referred to art. 2 par. 1 of Annexe 5 of the
Regulations which stipulates that the new club shall pay the solidarity
contribution to the training club(s) no later than 30 days after the player’s
registration or, in case of contingent payments, 30 days after the date of such
payments.
16.
In this respect, the DRC judge recalled the information contained in the TMS,
according to which Club L and the Respondent agreed upon a transfer
compensation of EUR 3,500,000, payable as follows:
– the amount of EUR 1,500,000 on 15 January 2013;
– the amount of EUR 1,000,000 on 15 July 2013;
– the amount of EUR 1,000,000 on 31 January 2014.
17.
In view of all the above and taking into consideration that the third instalment
was not yet due at the moment of adjudicating on the present matter, the
DRC judge decided that the Respondent must pay to the Claimant the amount
of EUR 72,912, which corresponds to 58.33% of the 5% of the amount of EUR
2,500,000.
18.
Furthermore, and taking into consideration both the claim of the Claimant as
well as art. 2 par. 1 of Annexe 5 of the Regulations, the DRC judge decided
that the Respondent has to pay, in conformity with the longstanding practice
of the DRC, interest at the rate of 5% p.a. as follows:
- 5% p.a. as of 14 February 2013 over the amount of EUR 43,747;
- 5% p.a. as of 14 August 2013 over the amount of EUR 29,165.
19.
Having established the above, the DRC judge turned his attention to the
request of the Claimant concerning solidarity contribution based on a possible
subsequent transfer. In this respect the DRC judge referred to the basic
principle of the burden of proof, as stipulated in art. 12 par. 3 of the
Procedural Rules, according to which a party claiming a right on the basis of an
alleged fact shall carry the respective burden of proof.
20.
In this context, the DRC judge observed that the Claimant only claimed its
proportion of the solidarity contribution based on a possible subsequent
transfer, however, it did not provide any evidence that such stransfer had
indeed occurred. Consequently, the DRC judge decided that the Claimant’s
request in connection with a subsequent transfer is rejected.
Solidarity contribution in connection with the player A
(Club F, from country B / Club C, from country B)
6/9
21.
The DRC judge concluded his deliberations as to the substance of the matter
by rejecting any further claim of the Claimant.
22.
Lastly, the DRC judge referred to art. 25 par. 2 of the Regulations in
combination with art. 18 par. 1 of the Procedural Rules, according to which, in
proceedings before the DRC, including the DRC judge, relating to disputes
regarding training compensation and the solidarity mechanism, costs in the
maximum amount of currency of country H 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.
23.
In respect of the above, the Chamber held that the amount to be taken into
consideration in the present proceedings is EUR 102,361 related to the claim of
the Claimant. Consequently, the Chamber concluded that the maximum
amount of costs of the proceedings corresponds to currency of country H
15,000 (cf. table in Annexe A of the Procedural Rules).
24.
As a result, considering that the case at hand did not pose any particular
factual difficulties and taking into account the degree of success, the Chamber
determined the final costs of the current proceedings to the amount of
currency of country H 15,000, of which currency of country H 10,000 shall be
borne by the Claimant and currency of country H 5,000 shall be borne by the
Respondent.
*****
Solidarity contribution in connection with the player A
(Club F, from country B / Club C, from country B)
7/9
III.
Decision of the DRC judge
1.
The claim of the Claimant, Club F, 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 72,912 plus
interest at 5% p.a. until the date of effective payment as follows:
- 5% p.a. as of 14 February 2013 over the amount of EUR 43,747;
- 5% p.a. as of 14 August 2013 over the amount of EUR 29,165.
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 is rejected.
5.
The final costs of the proceedings in the amount of currency of country H
15,000 are to be paid within 30 days as from the date of notification of the
present decision, as follows:
5.1.
The amount of currency of country H 5,000 by the Respondent to FIFA
to the following bank account with reference to case no.:
5.2.
6.
The amount of currency of country H 10,000 by the Claimant to FIFA.
Given that the Claimant has already paid the amount of currency of
country H 3,000 as advance of costs at the start of the present
proceedings, the additional amount of currency of country H 7,000 is
to be paid by the Claimant to the above-mentioned bank account.
The Claimant is directed to inform the Respondent immediately and directly
of the account number to which the remittance under point 2. above is to be
made and to notify the DRC judge 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 contain all the elements in accordance with point 2 of the
Solidarity contribution in connection with the player A
(Club F, from country B / Club C, from country B)
8/9
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 DRC judge:
Markus Kattner
Deputy Secretary General
Enclosed: CAS directives
Solidarity contribution in connection with the player A
(Club F, from country B / Club C, from country B)
9/9