Solidarity Contribution
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 3 September 2015,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
Philippe Diallo (France), member
Johan van Gaalen (South Africa), member
on a matter between the club,
Club A, country B
against the club,
Club C, country D
and the club,
Club E, country F
as “Intervening party”
regarding solidarity contribution in connection with the international transfer of the Player
G
I.
Facts of the case
1.
According to an official confirmation of the Football Association of country B, the
player from country H, Player G (hereinafter: the player), born on 4 June 1993, was
registered with its affiliated club, Club A (hereinafter: Club A) from 22 April 2005 until
25 July 2011, when he was transferred to the club from country F, Club E (hereinafter:
Club E).
2.
The sporting season in country B follows the calendar year.
3.
According to the information contained in TMS, the player was transferred from Club
E to Club C (hereinafter: Club C) in July 2014 for a transfer compensation of EUR
15,000,000.
4.
According to the Football Association of country D, the player was registered with
Club C on 1 July 2014.
5.
On 24 October 2014, Club A contacted FIFA requesting its proportion of solidarity
contribution, based on the definitive transfer of the player to Club C, in the
percentage of 2.07% of the total transfer fee or EUR 310,650.
6.
In its reply, Club C stated that it would “shortly start distributing the amounts due to
the claimant”.
7.
Club A, however, informed FIFA that no payment was made by Club C and requested
that the claim be submitted to the DRC.
8.
On 24 March 2015, Club C explained that, at first, it retained the 5% of solidarity
contribution from the transfer fee payable to Club E in accordance with the FIFA
Regulations. Only after Club E explicitly requested the payment of the remaining 5%
of the transfer fee, Club C transferred this amount to Club E, believing that the latter
would distribute the solidarity contribution accordingly, which did not occur. Thus,
Club C asked Club E to be involved in the present procedure.
9.
In its position, Club E confirms the information contained in Club C’s last
correspondence, but deems that it should not be held liable to reimburse any amounts
paid to it. In this respect, Club E maintains that it had agreed with Club C that the
latter would be responsible for the payment of solidarity contribution, calculated in
addition to the amounts payable to Club E for the player’s definitive transfer.
10.
In this respect, Club E refers to art. 2.2 of the agreement, which reads: “All payments
to Club E are net [which herein means that the amounts referred above are the sums
to be paid to Club E after all legal and/or regulatory deductions including but not
Distribution of the Solidarity Contribution for the Player G
Club A, country B / Club C, country D / Club E, country F
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limited to the FIFA solidarity mechanism – if any – have been made] and made via
Bank transfer to Club E’s account […]”. Thus, Club E deems that Club C should pay the
solidarity contribution to the claimant club.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter: the DRC or the Chamber)
analysed whether it was competent to deal with the matter at stake. In this respect,
the Chamber referred to art. 21 par. 1 of the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the
Procedural Rules). The present matter was submitted to FIFA on 24 October 2014.
Therefore, the Chamber concluded that the 2014 edition of the Procedural Rules was
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
d) of the Regulations on the Status and Transfer of Players (edition 2015; hereinafter:
the Regulations), the Dispute Resolution Chamber shall adjudicate on disputes relating
to the solidarity mechanism between clubs belonging to different associations in
connection with the international transfer of a player.
3.
In this respect, the Chamber was eager to emphasize that contrary to the information
contained in FIFA’s letter dated 27 August 2015 by means of which the parties were
informed of the composition of the Chamber, the members Mr I and Mr J refrained
from participating in the deliberations in the case at hand. The foregoing is due to the
fact that the member Mr I has the same nationality as the Club C and that, in order to
comply with the prerequisite of equal representation of club and player
representatives, also the member Mr K refrained from participating. Thus, the Dispute
Resolution Chamber adjudicated the case in presence of three members in accordance
with art. 24 par. 2 of the Regulations.
4.
Furthermore, the Chamber analysed which regulations should be applicable as to the
substance of the matter. In this respect, it confirmed that in accordance with art. 26
par. 1 and par. 2 of the Regulations (edition 2015), and considering that the player
was registered with Club C, on a permanent basis, on 1 July 2014, the 2012 edition of
said 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 Chamber entered into the substance of the matter. In doing so, 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
Distribution of the Solidarity Contribution for the Player G
Club A, country B / Club C, country D / Club E, country F
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documentary evidence which it considered pertinent for the assessment of the matter
at hand.
6.
In this respect, the DRC started by acknowledging that Club A is requesting solidarity
contribution in the amount of EUR 310,650, corresponding to 2.07% of the total
transfer fee paid for the permanent transfer of the player to Club C, i.e. EUR
15,000,000.
7.
In this respect, the DRC first of all emphasised that, as established in art. 21 in
conjunction with Annexe 5 of the Regulations, 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 solidarity contribution to the club(s) involved in the
training and education of the player in proportion to the number of years the player
has been registered with the relevant clubs between the seasons of his 12th and 23rd
birthday.
8.
In continuation, the Chamber noted that, on the one hand, Club C stated that it had
not retained 5% of the transfer compensation and, thus, had paid the entire EUR
15,000,000 to Club E. In other words, Club C asserted that it omitted to deduct 5% of
the relevant transfer compensation relating to the distribution of the solidarity
contribution. On the other hand, the DRC noted that Club E asserted that, in
accordance with article 2.2 of the agreement, any and all solidarity contributions were
due by Club C, since the said article stipulated that “All payments to Club E are net
[which herein means that the amounts referred above are the sums to be paid to Club
E after all legal and/or regulatory deductions including but not limited to the FIFA
solidarity mechanism – if any – have been made] and made via Bank transfer to Club
E’s account […]”.
9.
Taking into account the above arguments, the Chamber observed that the main issue
in the current matter is that Club E is of the opinion that the total amount of EUR
15,000,000 is due to it and that, in accordance with article 2.2 of the agreement, Club
C had to pay, on top of the total transfer compensation of EUR 15,000,000, the
relevant amounts concerning solidarity contribution to the club(s) involved in the
training and education of the player.
10.
In this context, the DRC referred again to art. 21 and art. 1 of Annexe 5 of the
Regulations which clearly 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 (…)“
(emphasis added).
11.
In this respect, the DRC was eager to emphasize that the solidarity mechanism is a
principle well-established in the Regulations, from which the parties signing a transfer
Distribution of the Solidarity Contribution for the Player G
Club A, country B / Club C, country D / Club E, country F
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or loan contract cannot derogate through the contents of a contract. In other words,
the obligation to distribute solidarity contribution cannot be set aside by means of a
contract concluded between the clubs involved in a player’s transfer. Thus, as for the
distribution of the solidarity contribution, the amount to be taken into account when
calculating the solidarity contribution payments due to the club(s) involved in the
player’s education and training, is the amount actually agreed upon as the total
compensation payable by the new club to the former club, regardless of any provision
to the contrary stipulated in the transfer or loan contract.
12.
In this regard, the Chamber considered that if one would follow Club E’s
interpretation of art. 2.2 of the agreement and its argument that Club C should pay it
the total compensation of EUR 15,000,000 without deducting any amount(s) in
conformity with the rules regarding solidarity contribution, it would mean that, in the
present matter, the amount of EUR 15,000,000 would constitute 95% of the total
amount of compensation for the permanent transfer of the player. Consequently, Club
C would be responsible to pay the remaining part of 5% to the club(s) involved in the
training and education of the player. The DRC stressed that would this line be
followed, the total amount of compensation would be EUR 15,789,473, which,
evidently, would be different from the terms of the agreement signed between the
clubs involved in the transfer of the player. Consequently, the DRC considered that,
should the solidarity contribution be calculated in the way Club E argued, the 5%
solidarity contribution would, according to the Regulations, then be calculated on the
basis of EUR 15,789,473 instead of EUR 15,000,000, a calculation which, in the
Chamber’s view, is incorrect as such an approach as to the calculation of the solidarity
contribution would destabilize the entire system of the solidarity mechanism and
would undermine the legal certainty the Regulations provide for. Therefore, a strict
application of the rules regarding solidarity contribution should be followed and,
hence, 5% should have been deducted from the EUR 15,000,000 and distributed to the
club(s) involved in the player’s training and education.
13.
Subsequently and considering that Club E received 100% of the transfer fee, the DRC
referred to the well-established jurisprudence of the DRC which has to be applied in
the present matter, in accordance with which 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. 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.
14.
In light of the above, the DRC decided that Club C is liable to pay the relevant
proportion of the 5% solidarity contribution to Club A and that Club E must reimburse
the same proportion of the 5% solidarity contribution to Club C.
Distribution of the Solidarity Contribution for the Player G
Club A, country B / Club C, country D / Club E, country F
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15.
In this regard, having confirmed the above-mentioned obligation for Club C and Club
E, the DRC went on to establish the proper calculation of the relevant proportion of
solidarity contribution due to Club A.
16.
To that end, the DRC 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 trained and educated by
the club(s) concerned.
17.
In this respect, the DRC recalled that the Football Association of country B had
confirmed that the player, born on 4 June 1993, was registered with Club A as from 22
April 2005 until 25 July 2011, and that the relevant compensation amounts to EUR
15,000,000.
18.
Consequently, and taking into account the percentage claimed by Club A, the latter is
entitled to receive 2.07% of the total transfer compensation paid by Club C to Club E,
as requested, which in fact amounts to EUR 310,500 and not to EUR 310,650, as
calculated by Club A.
19.
In view of all the above, the DRC decided that Club C must pay to Club A the amount
of EUR 310,500 and that Club E must reimburse the amount of EUR 310,500 to Club C.
20.
The DRC concluded its deliberations as to the substance of the matter by rejecting any
further claim of Club A.
21.
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. The
relevant provision further states that the costs are to be borne in consideration of the
parties’ degree of success in the proceedings (cf. art. 18 par. 1 of the Procedural Rules).
22.
In respect of the above, and taking into account that Club A has been the successful
party, the DRC concluded that Club C has to bear the costs of the current proceedings
in front of FIFA.
23.
According to Annex A of the Procedural Rules, the costs of the proceedings are to be
levied on the basis of the amount in dispute.
24.
On that basis, the DRC held that the amount to be taken into consideration in the
present proceedings is EUR 310,650 related to the claim of Club A. Consequently, the
DRC concluded that the maximum amount of costs of the proceedings corresponds to
CHF 25,000 (cf. table in Annex A).
Distribution of the Solidarity Contribution for the Player G
Club A, country B / Club C, country D / Club E, country F
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25.
Considering that the case at hand referred to some complex factual and legal issues,
the DRC determined the costs of the current proceedings to the amount of CHF
22,000.
*****
III.
Decision of the Dispute Resolution Chamber
1.
The claim of Club A is partially accepted.
2.
Club C has to pay to Club A, within 30 days as from the date of notification of
this decision, the amount of EUR 310,500.
3.
In the event that the aforementioned sum is not paid within the stated time limit,
interest of 5% p.a. falls due as of expiry of the stipulated time limit and 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 Club A is rejected.
5.
The final costs of the proceedings in the amount of CHF 22,000 are to be paid by
Club C, within 30 days of notification of the present decision, as follows:
5.1.
The amount of CHF 17,000 to FIFA to the following bank account with
reference to case no. XXXX:
UBS Zurich
Account number 366.677.01U (FIFA Players’ Status)
Clearing number 230
IBAN: CH 27 0023 0230 3666 7701U
SWIFT: UBSWCHZH80A
5.2.
The amount of CHF 5,000 to Club A.
6.
Club A is directed to inform Club C immediately and directly of the account
number to which the remittances are to be made and to notify the Dispute
Resolution Chamber of every payment received.
7.
Club E has to reimburse the amount of EUR 310,500 to Club C within 30 days as
from the date of notification of this decision.
8.
If the aforementioned sum is not paid by Club E within the aforementioned
deadline, interest at the rate of 5% p.a. will fall due as of expiry of the said 30
days’ time limit and the present matter shall be submitted, upon request, to FIFA’s
Disciplinary Committee for consideration and a formal decision.
Distribution of the Solidarity Contribution for the Player G
Club A, country B / Club C, country D / Club E, country F
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9.
Club C is directed to inform Club E immediately and directly of the account
number to which the remittance 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. 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
Encl.
CAS directives
Distribution of the Solidarity Contribution for the Player G
Club A, country B / Club C, country D / Club E, country F
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