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 issued by the Football Association of country B, the
player from country B, Player G (hereinafter: the player), born on 4 June 1993 was
registered with its affiliated club, Club A (hereinafter: Club A), as a professional, from 6
February 2013 until 30 June 2013.
2.
The football season in country B runs as follows: (a) for amateurs (under 20 years of age),
from January until December of the relevant year; (b) for amateurs (20 years of age or
more) and professionals, from 1 July until 30 June of the following year.
3.
According to the information contained in TMS, the player was transferred from the club
from country H, Club I, to the club from country F, Club E (hereinafter: Club E), on a
permanent basis, on 26 July 2011. On 15 February 2013, he was loaned from Club E to
Club A and on 2 August 2013 he returned to Club E. On 11 September 2013, the player
was loaned from Club E to Club C (hereinafter: Club C) and in July 2014 he went “from
loan to permanent” with Club C.
4.
Furthermore, according to TMS, Club E and Club C agreed upon a loan compensation
amounting to EUR 300,000, payable by 9 September 2013. In addition, the loan contract
provided that “Club E grants Club C an option right to acquire the registration of the
player on a permanent basis against the payment of the agreed net amount of EUR
15,000,000 […]”, to be exercised until 31 May 2014 “by notifying Club E in writing by
ways of facsimile […] or e-mail […] and by making the respective payment to the bank
account below identified”. On 14 May 2014, Club C informed Club E of its intention to
exercise the option of permanent transfer and on 27 May 2014 and 30 May 2014 it paid
in two instalments the total amount of EUR 15,000,000 to Club E.
5.
According to the Football Association of country D, the player was first registered on
loan with Club C on 11 September 2013 and “from loan to permanent” on 1 July 2014.
6.
On 30 September 2014, Club A contacted FIFA requesting its proportion of solidarity
contribution, based both on the loan and on the definitive transfer of the player from
Club E to Club C, in the percentage of 4.166% of 5% of the total loan and transfer fees.
7.
In its reply, Club C stated that it would “shortly start distributing the amounts due to the
claimant”.
8.
Club A, however, informed FIFA that no payment was made by Club C and requested that
the claim be submitted to the DRC.
9.
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
Distribution of the Solidarity Contribution for the Player G
Club A, country B / Club C, country D / Club E, country F
2/8
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.
10.
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 loan as well as for his definitive transfer.
11.
In this respect, Club E refers to art. 2.2 of the loan 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 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 30 September 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
Distribution of the Solidarity Contribution for the Player G
Club A, country B / Club C, country D / Club E, country F
3/8
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, first on loan on 11 September 2013 and subsequently 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 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 percentage of 4.166% of 5% of the total loan and transfer fees paid,
respectively, for the player’s loan and for his subsequent permanent transfer from Club E
to Club C, i.e. EUR 300,000 plus 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 15,300,000
to Club E. In other words, Club C asserted that it omitted to deduct 5% of the relevant
loan and 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 loan agreement – which included the option of the permanent transfer – 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
Distribution of the Solidarity Contribution for the Player G
Club A, country B / Club C, country D / Club E, country F
4/8
15,300,000 is due to it and that, in accordance with article 2.2 of the loan agreement,
Club C had to pay, on top of the total loan and transfer compensation of EUR 15,300,000,
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 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 loan agreement and its argument that Club C should pay it the total
compensation of EUR 15,300,000, for the loan and the permanent transfer of the player,
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 15,300,000
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, for the loan and the
permanent transfer of the player, would be EUR 16,105,263, which, evidently, would be
different from the terms of the agreement signed between the clubs involved in the loan
and the subsequent permanent 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 16,105,263 instead of EUR 15,300,000, 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 300,000 and from the EUR 15,000,000, and distributed to the
club(s) involved in the player’s training and education.
Distribution of the Solidarity Contribution for the Player G
Club A, country B / Club C, country D / Club E, country F
5/8
13.
Subsequently and considering that Club E received 100% of the relevant loan and
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 wellestablished 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.
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 6 February 2013
until 30 June 2013, i.e. during 5 months of the season of the player’s 20th birthday, and
that the relevant compensation amounts to EUR 15,300,000, in total.
18.
Consequently, the DRC established that, in accordance with the breakdown provided for
in art. 1 of Annexe 5 of the Regulations, Club A is entitled to receive 4.16% of 5% of the
total loan and transfer compensation paid by Club C to Club E, as requested, which
amounts to EUR 31,824.
19.
In view of all the above, the DRC decided that Club C must pay to Club A the amount of
EUR 31,824 and that Club E must reimburse the amount of EUR 31,824 to Club C.
20.
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).
21.
In respect of the above, and taking into account that the claim of Club A has been fully
accepted, the DRC concluded that Club C has to bear the costs of the current proceedings
in front of FIFA.
Distribution of the Solidarity Contribution for the Player G
Club A, country B / Club C, country D / Club E, country F
6/8
22.
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.
23.
On that basis, the DRC held that the amount to be taken into consideration in the
present proceedings is EUR 31,824 related to the claim of Club A. Consequently, the DRC
concluded that the maximum amount of costs of the proceedings corresponds to CHF
5,000 (cf. table in Annex A).
24.
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 4,000.
*****
III.
Decision of the Dispute Resolution Chamber
1.
The claim of Club A is 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 31,824.
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.
The final costs of the proceedings in the amount of CHF 4,000 are to be paid by Club C,
within 30 days of notification of the present decision, 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.
Club A is directed to inform Club C 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.
6.
Club E has to reimburse the amount of EUR 31,824 to Club C within 30 days as from the
date of notification of this decision.
Distribution of the Solidarity Contribution for the Player G
Club A, country B / Club C, country D / Club E, country F
7/8
7.
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.
8.
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
8/8