Solidarity Contribution
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 25 September 2015,
in the following composition:
Geoff Thompson (England), Chairman
Theo van Seggelen (Netherlands), member
Carlos González Puche (Colombia), member
Guillermo Saltos Guale (Ecuador), member
Alejandro Marón (Argentina), 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 E
I.
Facts of the case
1.
According to the player passport issued by the Football Federation of country B,
Player E from country B (hereinafter: the player), born on 30 August 1993, was
registered with the Club A from country B (hereinafter: the Claimant) as from 2
September 2009 until 6 September 2009, as an amateur and from 7 September 2009
until 31 January 2011 as a professional.
2.
The football season in country B follows the calendar year.
3.
The Football Federation from country D confirmed that the player was registered
with its affiliated club, Club C (hereinafter: the Respondent), on 5 August 2013.
4.
According to the Claimant, the club from country B, Club C (hereinafter: Club C),
concluded a transfer agreement with the Respondent for the transfer of the player,
from Club C to the Respondent.
5.
According to the information contained in the Transfer Matching System (TMS), the
Club G from country F (hereinafter: Club G), was also part of this agreement, as Club
G had a prior agreement with Club C for the permanent transfer of the player. The
Respondent overtook the remaining financial obligations of Club G towards Club C
and the Respondent obliged itself to reimburse Club G the amount the latter had
already paid.
6.
On 31 January 2014, the Claimant contacted FIFA claiming its proportion of the
solidarity contribution in connection with the transfer of the player concerned from
Club C to the Respondent on 11 July 2013. In particular, the Claimant requested
14.17% of 5% of the total transfer compensation, plus 5% interest p.a. as from “the
date in which the payments were effectively due”.
7.
According to the information contained in the TMS, Club C and the Respondent
agreed upon a transfer compensation amounting to EUR 2,500,000 payable as
follows:
- EUR 937,500 until 15 July 2013 to be paid to Club C;
- EUR 625,000 until 31 July 2013 to be paid to Club G;
- EUR 937,500 until 15 December 2013 to be paid to Club C.
8.
In its reply to the claim, the Respondent argued that it had already paid solidarity
contribution to the Claimant in connection with the transfer of the player before
the claim was lodged. The Respondent argued that it paid the amount of EUR
17,750 calculated as 0.71% of the total transfer compensation.
9.
The Respondent further argued that it paid the amount in two instalments on 21
November 2013 and 27 January 2014, respectively. The Respondent explained that it
Solidarity contribution in connection with the Player E
(Club A, country B / Club C, country D)
2/6
paid according to the bank instruction received, but that the payment was blocked
by the Bank of country B, as the bank was waiting for some information to be
provided by the Claimant.
10. In its replica, the Claimant argued that the payments mentioned by the Respondent
were not received, as they were retained by the Central Bank of country B and
subsequently returned to the Respondent. The Claimant provided again its bank
details to the Respondent and requested the payment of EUR 17,750.
11. In its duplica, the Respondent repeated its position and argued that the amounts
allegedly paid, remain blocked and were never returned.
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, the Chamber took note that the present matter was submitted to FIFA on
31 January 2014. Consequently, the 2012 edition of the Rules governing the
procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(hereinafter: Procedural Rules) is applicable to the matter at hand (cf. art. 21 of the
2012, 2014 and 2015 editions of the Procedural Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 of the Procedural
Rules and confirmed that in accordance with art. 24 par. in conjunction with art. 22
lit. d) of the Regulations on the Status and Transfer of Players (edition 2015), the
Dispute Resolution Chamber is competent to decide on the present matter, which
concerns a dispute relating to the solidarity mechanism between 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 2012, 2014 and 2015)
and, on the other hand, to the fact that the player was registered with the
Respondent on 5 August 2013. In view of the aforementioned, the Chamber
confirmed that the 2012 edition of the Regulations on the Status and Transfer of
Players (hereinafter: Regulations) is applicable to the matter at hand as to the
substance.
4.
The competence of the Chamber 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 DRC
emphasised that in the following considerations it will refer only to the facts,
Solidarity contribution in connection with the Player E
(Club A, country B / Club C, country D)
3/6
arguments and documentary evidence, which it considered pertinent for the
assessment of the matter at hand.
5.
In this respect, the DRC noted that the Claimant claimed 14.17% of 5% of the total
transfer compensation paid by the Respondent, as solidarity contribution.
6.
In addition to the above, the Chamber recalled that according to the information
contained in the TMS, the Respondent and Club C agreed upon a transfer
compensation of EUR 2,500,000 payable as follows:
- EUR 937,500 until 15 July 2013 to be paid to Club C;
- EUR 625,000 until 31 July 2013 to be paid to Club G;
- EUR 937,500 until 15 December 2013 to be paid to Club C.
7.
Furthermore, the DRC noted that the Respondent asserted that, even before the
claim at hand was lodged, it paid solidarity contribution to the Claimant in
connection with the transfer of the player. In this respect, the members of the
Chamber took note that the Respondent argued that it paid the amount of EUR
17,750, calculated as 0.71% of the total transfer compensation, to the Claimant.
8.
In this regard, the members of the DRC referred to the content of art. 12 par. 3 of
the Procedural Rules according to which any party claiming a right on the basis of
an alleged fact shall carry the burden of proof and outlined that the Respondent
presented evidence confirming that the amount was actually paid in two
instalments, on 21 November 2013 and 27 January 2014, respectively.
9.
Equally, the members of the Chamber took note that the Respondent held that,
however, the payments mentioned above were blocked by the Bank of country B, as
according to it, “the payment was blocked by the Bank of country B which was
waiting for [the Claimant] to supply the Bank of country B with certain details”.
Furthermore, it was observed by the DRC that the Respondent also held that the
corresponding amount was not returned to it to its bank account.
10.
Subsequently, the DRC then proceeded to focus on the arguments of the Claimant.
In this regard, the Claimant argued that the above mentioned payments were not
received, as they were retained by the Central Bank of country B and subsequently
returned to the Respondent.
11.
In this respect, the Chamber took note that the Claimant submitted evidence to
support its allegation, however, the evidence presented by the Claimant was only
submitted in its original version i.e. in the Portuguese language.
12.
At this point, the Chamber recalled that, in accordance with art. 9 par. 1 lit. e) of the
Procedural Rules, all documentation provided in the context of a dispute in front of
FIFA should be presented in the original version and, if applicable, translated into
Solidarity contribution in connection with the Player E
(Club A, country B / Club C, country D)
4/6
one of the official FIFA languages (English, French, Spanish and German). Bearing in
mind the wording of the aforementioned provision, the Chamber concluded that as
no translation was provided by the Claimant, the evidence submitted could not be
taken into account.
13.
Consequently, the members of the DRC deemed that no substantial evidence was
provided by the Claimant with regard to the return of the above mentioned
payments to the Respondent, while on the other hand, the DRC deemed that the
Respondent provided adequate evidence that it paid the amount of EUR 17,750, to
the Claimant, and that said amount was not returned after being withheld by the
Bank of country B.
14.
On the basis of all these considerations, the DRC unanimously concluded that the
Respondent had duly paid the relevant solidarity contribution to the Claimant and
that the claim of the Claimant must be rejected.
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 levied. The
costs are to be borne in consideration of the parties’ degree of success in the
proceedings.
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 17,713 related to the claim of the Claimant. Therefore, the DRC
concluded that the maximum amount of costs of the proceedings corresponds to
CHF 5,000 (cf. table in Annexe A).
18.
As a result, and taking into account the particularities of the present matter, the
complexity of the case as well as that the claim of the Claimant is rejected, the DRC
determined the costs of the current proceedings to the amount of CHF 3,000, which
shall be borne by the Claimant.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Club A, is rejected.
2.
The final costs of the proceedings in the amount of CHF 3,000 are to be paid by the
Claimant, within 30 days of notification of the present decision, to FIFA to the
following bank account with reference to case no.:
Solidarity contribution in connection with the Player E
(Club A, country B / Club C, country D)
5/6
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 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 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
Acting Secretary General
Enclosed: CAS directives
Solidarity contribution in connection with the Player E
(Club A, country B / Club C, country D)
6/6