Solidarity Contribution
Texto da decisão
Decis ion of the
S ingle Judge of the s ub-com m ittee of the
Dis pute Res olution Cham ber (DRC)
passed on 17 October 2018,
by Geoff Thom ps on (England),
Single Judge of the sub-committee of the DRC,
on the claim presented by the club,
Club A, Country B
as Claimant
against the club,
Club C, Country D
as Respondent
regarding solidarity contribution in connection with the transfer
of the player Player E
I.
Facts of the cas e
1.
According to the player passport issued by the Football Federation of Country B,
the player, Player E, born on 29 January 1996 (hereinafter: the player), was
registered with Club A (hereinafter: the Claimant) as from 29 January 2008 until
31 May 2012 as well as from 1 June 2015 until 15 September 2015.
2.
The Football Federation of Country B confirmed that the football season in
Country B starts on 1 January and ends on 31 December of the respective year.
3.
According to the information contained in the Transfer Matching System (TMS),
the club of Country F, Club G, and Club C (hereinafter: the Respondent) as well as
the Claimant, agreed upon the transfer of the player from Club G to the
Respondent involving a transfer compensation amounting to EUR 2,500,000
payable as follows:
a) EUR 1,000,000 payable by the Respondent to Club G “within 5 days from
receiving the international transfer certificate (ITC) and the player passes
the medical test”;
b) EUR 750,000 payable by the Respondent to Club G on the 1st of January
2017;
c) EUR 750,000 payable by the Respondent to the Claimant “within 5 days
from receiving the international transfer certificate (ITC) and the player
passes the medical test”.
4.
According to the information contained in the Transfer Matching System (TMS)
the player was registered with the Respondent, on 5 August 2016.
5.
On 29 March 2017, the Claimant lodged a claim in front of FIFA claiming its
proportion of the solidarity contribution in connection with the transfer of the
player from Club G, to the Respondent. In particular, the Claimant requested
100% of 5% of EUR 2,500,000, plus 5% interest p.a. as of 3 August 2016.
6.
On 11 October 2017, the Respondent’s submission was uploaded in the TMS, i.e.
after the time limit set by FIFA to reply had expired on 28 September 2017.
Distribution of the solidarity contribution in connection with the transfer of the Player E
(Club A, Country B / Club C, Country D)
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II.
Cons iderations of the S ingle Judge of the s ub-com m ittee of the DRC
1.
First of all, the Single Judge of the sub-committee of the Dispute Resolution Chamber
(hereinafter: the Single Judge) analysed whether he was competent to deal with the
matter at stake. In this respect, he took note that the present matter was submitted to
FIFA on 29 March 2017. Consequently, the Single Judge concluded that the edition 2017
of the Rules Governing 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 Procedural Rules).
2.
Subsequently, the Single Judge referred to art. 3 of the Procedural Rules, which states
that he shall examine his jurisdiction in light of arts. 22 to 24 of the Regulations on the
Status and Transfer of Players (2018 edition). In accordance with art. 3 of Annexe 6 in
conjunction with art. 24 par. 3 and art. 22 lit. d) of the Regulations on the Status and
Transfer of Players, the Single Judge is competent to decide on the present matter
relating to the solidarity mechanism between clubs belonging to different associations.
3.
Furthermore, the Single 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, the Single Judge referred to art. 26 par. 1 and 2 of the Regulations on the
Status and Transfer of Players (2016 and 2018 editions). Furthermore, he acknowledged
that the player had been registered for the Respondent on 5 August 2016 and that the
present claim was lodged on 29 March 2017. In view of the aforementioned, the Single
Judge concluded that the edition 2016 of the Regulations on the Status and Transfer of
Players (hereafter: the Regulations) is applicable to the case at hand as to the substance.
4.
The competence of the Single Judge and the applicable regulations having been
established, the Single Judge entered into the substance of the matter. In this respect,
he started by acknowledging all the above-mentioned facts as well as the arguments
and documentation submitted by the parties. However, the Single Judge emphasized
that in the following considerations he will refer only to the facts, arguments and
documentary evidence which he considered pertinent for the assessment of the matter
at hand. In particular, the Single Judge recalled that in accordance with art. 6 par. 3
of Annexe 3 of the Regulations, FIFA may use, within the scope of proceedings
pertaining to the application of the Regulations, any documentation or evidence
generated or contained in the Transfer Matching System (TMS).
5.
In continuation, the Single Judge started by acknowledging that the Claimant requested
100% of the 5% of the transfer compensation paid by the Respondent to the club of
Country F, Club G, and to the Claimant itself, plus 5% interest p.a. as of 3 August 2016.
6.
Moreover, the Single Judge observed that the Respondent, in spite of having been
invited to do so, had, for its part, failed to present its response to the claim of the
Claimant within the relevant time limit set by FIFA, i.e. 28 September 2017. As a result,
bearing in mind the Dispute Resolution Chamber’s constant jurisprudence in this regard
and in application of art. 9 par. 3 of the Procedural Rules, the Single Judge decided not
to take into account the reply of the Respondent and established that, in accordance
with the aforementioned provision, he shall take a decision on the basis of those
documents on file that were provided prior to the deadline set by FIFA, in casu, on the
statements and documents presented by the Claimant.
Distribution of the solidarity contribution in connection with the transfer of the Player E
(Club A, Country B / Club C, Country D)
3
7.
Having established the above, the Single Judge referred to art. 21 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 between the seasons of his
12th and 23rd birthday.
8.
In this respect, the Single Judge took due note that the player, born on 29 January 1996,
was registered with the Claimant as from 29 January 2008 until 31 May 2012 as well as
from 1 June 2015 until 15 September 2015, i.e.:
- during 11 months of the season of the player’s 12th birthday,
- during 12 months of the season of the player’s 13th birthday;
- during 12 months of the season of the player’s 14th birthday;
- during 12 months of the season of the player’s 15th birthday
- during 5 months of the season of the player’s 16th birthday;
- during 4 months of the season of the player’s 19th birthday.
9.
Turning his attention to the relevant calculation, the Single Judge took into account
that, according to the relevant transfer agreement, the Respondent agreed upon a
transfer compensation amounting to the total amount of EUR 2,500,000, payable as
follows:
a) EUR 1,000,000 payable by the Respondent to Club G “within 5 days from
receiving the international transfer certificate (ITC) and the player passes
the medical test”;
b) EUR 750,000 payable by the Respondent to Club G on the 1st of January
2017;
c) EUR 750,000 payable by the Respondent to the Claimant “within 5 days
from receiving the international transfer certificate (ITC) and the player
passes the medical test”.
10.
On account of the above and in accordance with art. 1 of Annexe 5 of the Regulations,
the Single Judge considered that the Claimant is, thus, entitled to receive solidarity
contribution for the period as from 29 January 2008 until 31 May 2012 as well as from 1
June 2015 until 15 September 2015, i.e. for 11 months of the season of the player’s 12th
birthday, for the entire seasons of the player’s 13th, 14th, and 15th birthday, for 5 months
of the season of the player’s 16th birthday and for 4 months of the season of the player’s
19th birthday. In terms of the percentage of the 5% solidarity contribution, the Single
Judge calculated that, on a pro rata basis, this corresponds to 27.07% of 5% as opposed
to the 100% of 5% claimed by the Claimant.
11.
Therefore, the Single Judge concluded that the Claimant is entitled to receive EUR
33,837 as solidarity contribution in relation to the transfer of the player from Club G to
the Respondent.
12.
On account of the above, in accordance with art. 21 in combination with Annexe 5 of
the Regulations as well as the well-established jurisprudence of the Dispute Resolution
Chamber, the Single Judge decided that the Respondent is liable to pay to the Claimant
the amount of EUR 33,837 as solidarity contribution for the player, Player E.
Distribution of the solidarity contribution in connection with the transfer of the Player E
(Club A, Country B / Club C, Country D)
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13.
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 rate of 5% p.a. as follows:
a. 5% interest p.a. on the amount of EUR 23,686 as of 5 September 2016 until the
date of effective payment;
b. 5% interest p.a. on the amount of EUR 10,151 as of 1 February 2017 until the date
of effective payment.
14.
Lastly, the Single 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 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 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.
15.
In this respect, the Single Judge reiterated that the claim of the Claimant is partially
accepted and established that the Respondent has to bear the costs of the current
proceedings before FIFA.
16.
Equally, the Single Judge noted that the amount in dispute to be taken into
consideration in the present proceedings amounts to EUR 125,000 related to the claim
of the Claimant. Therefore, the Single Judge concluded that the maximum amount of
costs of the proceedings corresponds to CHF 15,000 (cf. table in Annexe A).
17.
As a result, and taking into account that the Respondent failed to take stance in the
procedure within the given time limit, the Single Judge determined the costs of the
current proceedings to the amount of CHF 5,000, which shall be borne by the
Respondent.
III.
Decis ion of the S ingle Judge of the s ub-com m ittee of the DRC
1.
The claim of the Claimant, Club A, is partially accepted.
2.
The Respondent, Club C, has to pay to the Claimant, w ithin 30 day s as from the date
of notification of this decision, the amount of EUR 33,837 plus 5% interest p.a. as
follows:
a. 5% interest p.a. on the amount of EUR 23,686 as of 5 September 2016 until the date
of effective payment;
b. 5% interest p.a. on the amount of EUR 10,151 as of 1 February 2017 until the date of
effective payment.
3.
In the event that the aforementioned amount plus interest is not paid by the
Respondent 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.
Distribution of the solidarity contribution in connection with the transfer of the Player E
(Club A, Country B / Club C, Country D)
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5.
The Claimant is directed to inform the Respondent immediately and directly of the
account number to which the remittance is to be made and to notify the Single Judge
of the sub-committee of the DRC of every payment received.
6.
The final costs of the proceedings in the amount of CHF 5,000 are to be paid by the
Respondent, w ithin 30 day s of notification of the present decision, to FIFA to the
following bank account with reference to case no. XXXXXXX/XXX
UBS Zurich
Account number 366.677.01U (FIFA Players’ Status)
Clearing number 230
IBAN: CH 27 0023 0230 3666 7701U
SWIFT: UBSWCHZH80A
*****
Note relating to the m otiv ated decision (legal remedy):
According to art. 58 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
e-mail: [email protected]
www.tas-cas.org
For the Single Judge of the
sub-committee of the DRC:
Emilio García Silvero
Chief Legal & Compliance Officer
Encl.
CAS directives
Distribution of the solidarity contribution in connection with the transfer of the Player E
(Club A, Country B / Club C, Country D)
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