Solidarity Contribution
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 13 October 2010,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Theo van Seggelen (Netherlands), member
Johan van Gaalen (South Africa), member
Essa M. Saleh Al Housani (United Arab Emirates), member
Theodoros Giannikos (Greece), member
on the claim presented by the club,
E,
as Claimant
against the club,
T,
as Respondent
regarding a dispute for solidarity contribution in connection with
the transfer of the player S
I.
Facts of the case
1.
The player S (hereinafter: the player), was born on 17 May 1975.
2.
In accordance with the player passport issued by the Confederation of Football B
(CFB) in November 2006, the player was registered as an amateur for the club, C
(hereinafter: C), from 27 December 1993 until 27 June 1994.
3.
The sporting season in the country B follows the calendar year. Therefore, it starts
in January and ends in December of each year.
4.
The Football Federation T (FFT) confirmed that the player was registered for its
affiliated club, T (hereinafter: the Respondent), on 3 August 2006.
5.
On 11 February 2008, the club E (hereinafter: the Claimant) lodged a claim before
FIFA, asking for its proportion of solidarity contribution for the transfer of the
player from the club, H (hereinafter: H), to the Respondent in July 2006. The
Claimant alleged that the transfer amount was EUR 2,500,000, according to the
information provided on the website and requested the payment of EUR 5,000 as
solidarity contribution. Moreover, the Claimant held that the player was registered
with it from 21 January 1994 until 30 May 1994.
6.
On 14 May 2008, the CFB issued a new passport of the player, rectifying the
information included in it, stating that the player was actually registered for the
Claimant in the period between 21 January 1994 and 30 May 1994.
7.
In this regard, the Claimant explained that when it contacted the CFB to request
the player passport, the latter informed it through a letter dated 14 April 2009
that “with reference to the letter that [the Claimant] sent [them] requesting to
forward the claim aiming to obtain FIFA support receiving Solidarity Contribution
due to the transferences of the player S from the clubs T and V, [they] regret that
club C has already received the contribution that the New club due to [the
Claimant] , [and that they] believe that [the Claimant] should request the amount
to club C, for this reason [they] are returning this documentation to [the
Claimant].”
8.
Furthermore, the Claimant also emphasised that “although the payment of the
solidarity contribution was made to the club C base in a wrong Player Passport
issued in November 2006 by CFB”, upon request of the Claimant, the CFB rectified
the player passport inserting the period the concerned player was registered with
the Claimant.
9.
In conclusion, the Claimant stated that “even though the club C had received the
Solidarity Contribution due to club E, club E still has the unequivocal right to
receive the Solidarity Contribution from T.”
10.
Alternatively, the Claimant requested that FIFA notifies the club C to refund the
Claimant, in case FIFA decides the Respondent is no longer liable for the payment
of the relevant contribution.
11.
Even though FIFA has contacted the Respondent, it did not respond to the claim
and did not make any statements in the course of the investigation.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (DRC) analysed whether it was
competent to deal with the present matter. In this respect, it noted that the claim
at the basis of the present case was submitted to FIFA on 11 February 2008.
Consequently, the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (edition 2005; hereinafter: the
Procedural Rules) are applicable to the matter at hand (cf. article 21 par. 2 and 3
of the 2008 edition of the Procedural Rules in combination with article 18 par. 2
and 3 of the Procedural Rules).
2.
Subsequently, the members of the Chamber referred to article 3 par. 1 of the
Procedural Rules and confirmed that in accordance with art. 24 par. 1 in
connection with art. 22 lit. d) of the Regulations on the Status and Transfer of
Players (edition 2010), the Dispute Resolution Chamber shall adjudicate on
disputes relating to the solidarity mechanism between clubs belonging to
different associations. As a consequence, the Dispute Resolution Chamber
confirmed that it was the competent body to decide on the present litigation
involving a club and a club concerning the distribution of the solidarity
contribution in connection with the international transfer of the professional
player S from a club to a club.
3.
Furthermore, and taking into consideration that the player was registered on 3
August 2006 for the Respondent and that the present claim was lodged before
FIFA on 11 February 2008, 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 2 of the Regulations on the Status and Transfer
of Players (editions 2010, 2009 and 2008), the previous version of the regulations,
the FIFA Regulations for the Status and Transfer of Players (edition 2005;
hereinafter: the 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 Chamber entered into the substance of the matter and started by
acknowledging the above-mentioned facts as well as the documentation
submitted by the parties.
5.
First and foremost, the members of the Chamber went on to recall that according
to art. 21 of the Regulations in connection with Annex 5 of the Regulations, if a
professional player 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 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 sporting seasons of his 12th and
23rd birthday.
6.
In this respect, the Chamber took into account that according to the Claimant the
player was transferred from the club H to the Respondent for the amount of EUR
2,500,000.
7.
In continuation, the members of the Chamber acknowledged that the information
provided by the CFB, through the player passport issued in November 2006
establishes that the player was registered for the club C from 21 January 1994
until 30 May 1994.
8.
In this context, the Chamber took also note that, upon request of the Claimant,
the CFB issued a new player passport on 14 May 2008, rectifying the information
of the previous player passport, stating that the player was registered for the
Claimant for the relevant period, i.e. from 21 January 1994 until 30 May 1994.
9.
On account of the above, the DRC underlined that it remained undisputed that
the player was registered for the Claimant for the period between 21 January
1994 and 30 May 1994.
10.
In continuation, the Chamber held that it needed to establish whether the
Claimant was entitled to receive solidarity contribution related to the relevant
transfer for the period above-mentioned.
11.
In this regard, the Chamber emphasised that, as a general rule and in accordance
with its jurisprudence, the crucial element to determine which club should be
compensated for the player’s training, should be the club which has effectively
been involved in the training and education of the player, particularly, considering
that the solidarity mechanism should benefit the clubs that have actually
contributed and invested in the training of a player.
12.
Equally, the DRC referred to the article 2 of Annex 5 of the Regulations, which
inter alia stipulates that “the New Club shall pay the solidarity contribution to the
training club(s) (…)” and, subsequently that “it is the responsibility of the New
Club to calculate the amount of the solidarity contribution and to distribute it in
accordance with the player’s career history as provided for in the player passport.”
(emphasis added).
13.
Subsequently, it was acknowledged that the Respondent had already distributed
the relevant solidarity contribution to club C.
14.
The DRC was eager to point out that, notwithstanding the fact that the Claimant
appears to be in fact the club which effectively trained the player from 21 January
1994 until 30 May 1994, by the time the Respondent distributed the solidarity
contribution to the club C, it had neither been informed about the erroneous
information contained in the player passport issued by the CFB, nor it had been
contacted by the Claimant.
15.
The Chamber concluded that the Respondent paid to the club C the amount
corresponding to the solidarity contribution regarding the period between 21
January 1994 until 30 May 1994 in good faith, in accordance with the information
provided by the CFB in the player passport, and thus in accordance with the
Regulations. The Respondent, relying on an official source, the CFB, paid to the
club C convinced it was the club entitled to receive the relevant solidarity
contribution.
16.
In continuation, the Chamber held that bearing in mind the behaviour of the
Respondent, which acted in compliance with the Regulations and distributed
solidarity contribution in conformity with the contents of the player passport, the
latter cannot be obliged to pay the same proportion of solidarity contribution
referring to the same period of time in favour of two different clubs, since it acted
in good faith and relied upon the official information of the CFB.
17.
On account of the above, the Chamber considered that, in view of the very specific
circumstances of the case at hand, the Respondent cannot be obliged to distribute
solidarity contribution to the Claimant related to the period between 21 January
1994 and 30 May 1994, since the relevant amount has already been paid to the
club C in accordance with the Regulations.
18.
Finally, on a side note, the DRC emphasized that any entitlement arising from the
circumstances of the present matter, which the two clubs may have against each
other, would have to be dealt with by the club E deciding bodies at national level.
19.
In sum, the Chamber concluded that the claim of the Claimant is rejected.
III.
Decision of the Dispute Resolution Chamber
The claim of the Claimant, E, is rejected.
*****
Note relating to the motivated decision (legal remedy):
According to article 63 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
Deputy Secretary General