Solidarity Contribution
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 26 October 2006,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Gerardo Movilla (Spain), member
Joaquim Evangelista (Portugal), member
Mario Gallavotti (Italy), member
Peter Friend (Australia), member
on the claim presented by the club
A, X,
as Claimant
against the club
B, Y
as Respondent
regarding a solidarity mechanism dispute
in connection with the transfer of the player C.
I.
Facts of the case
1.
According to a written statement of the football association of the country X
the player C, born on 20 May 1981, was registered for the club A from the
country X, the Claimant, from 4 December 1999 to 3 March 2000 and from 8
May to 31 December 2002, from the age of 18 to the age of 19, respectively
from the age of 20 to the age of 21, always as a professional player.
2.
According to the copy of the International Transfer Certificate submitted by the
football association of the country Y, the player was transferred internationally
from the club D of the country X to the football association of the country Y on
29 July 2004.
3.
On 28 July 2004, the company E of the country X and the alleged holder of the
“federative rights” to the player in question and the club B of the country Y, the
Respondent, concluded an agreement for the transfer of the player C. This
aforementioned contract does not mention a transfer compensation.
According to clause 6 of the said contract, E will be responsible to pay the
relevant 5% of solidarity contribution.
4.
On 10 February 2005, the Claimant contacted FIFA and demanded 8,33% of
the 5% regarding the contribution to the solidarity mechanism.
5.
In reply hereto, the Respondent rejected the claim. It maintained that
according to the above-mentioned agreement E is responsible to pay the
relevant solidarity contribution.
6.
In the following, the Claimant insisted on receiving the relevant payment from
the Respondent and asserted that the latter paid for the transfer of the player
concerned the amount of USD 700,000.
7.
Upon FIFA’s request, the Respondent informed that it paid the amount of USD
325,000 as transfer compensation and 5% solidarity contribution to Mr F, who
acts on behalf of E, providing a copy of the relevant payment order of the club
to Mr F (note: drafted in language of country Y). The Respondent insisted that
the aforementioned company is liable for the payment regarding the
contribution to the solidarity mechanism.
8.
In continuation, FIFA asked the Respondent to present a translation of the
aforementioned payment order into one of the four official FIFA languages,
without success.
9.
Instead of a translation of the above-mentioned payment order, the
Respondent presented a further position regarding the present matter.
According to the Respondent, the claim has to be rejected because the player
was registered with the Claimant on the basis of a loan. Furthermore, it asserted
that in the case that FIFA decides that solidarity contribution is due, the
calculation of such must follow on the basis of the compensation of USD 18,000,
the amount the player paid to his former club D at the end of his employment.
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As a consequence to the aforementioned, the possible solidarity contribution
would be 5% of USD 18,000 = USD 900, payable in 10 instalments.
10.
In reply hereto, the Claimant maintained that the Respondent admitted having
paid USD 325,000 for the transfer of the player. Therefore, the Claimant
demanded that the amount of USD 16,250 (5%) should be distributed as
solidarity mechanism. The Claimant finally added that considering that the
player spent 11 months with the Claimant, it is entitled to receive 9,163%, i.e.
USD 1,488.98.
11.
The Respondent did not present a final statement.
12.
Upon FIFA’s request, the football association of the country X informed on 10
October 2006 that the employment contract concluded between the club D,
i.e. the player’s last club before his transfer to Y, and the player in question has
been terminated on 12 August 2004 upon a Labour Court’s decision.
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 matter at stake. In this respect, it referred to art. 18
par. 2 and 3 of the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber. The present matter was
submitted to FIFA on 10 February 2005, as a consequence the Chamber
concluded that the previous Procedural Rules (edition 2001) on matters
pending before the decision making bodies of FIFA are applicable on the
matter at hand.
2.
With regard to the competence of the Chamber, art. 25 par. 2 of the FIFA
Regulations for the Status and Transfer of Players (edition 2001) establishes that,
it falls within the purview of the Dispute Resolution Chamber to review disputes
concerning the distribution of the solidarity contribution.
3.
As a consequence, the Dispute Resolution Chamber is the competent body to
decide on the present litigation concerning the distribution of the solidarity
contribution claimed by the Claimant in connection with the transfer of the
professional C.
4.
Subsequently, the members of the Chamber analyzed which edition of the
Regulations for the Status and Transfer of Players should be applicable as to the
substance of the matter. In this respect, the Chamber referred to art. 26 par. 1
and 2 of the Regulations for the Status and Transfer of Players (edition 2005) in
the modified version in accordance with the FIFA circular no. 995 dated 23
September 2005. Furthermore, it acknowledged that the professional had been
registered for his new club on 29 July 2004. Equally the Chamber took note that
the claim was lodged at FIFA on 10 February 2005. In view of the
aforementioned, the Chamber concluded that the former FIFA Regulations for
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5.
the Status and Transfer of Players (edition 2001, hereafter: the Regulations) are
applicable on the case at hand as to the substance.
In continuation, and entering into the substance of the matter, the members of
the Chamber started by acknowledging the above-mentioned facts as well as
all the further documentation contained in the file.
6.
In this respect, the Chamber duly noted that, on the one hand, the Claimant
asserts being entitled to receive at least 9.163% of solidarity contribution in
connection with the transfer of the player to the Respondent.
7.
On the other hand, the Chamber observed that the Respondent is convinced
that since it paid the amount of USD 325,000 as transfer compensation to the
company E and since in accordance with the transfer agreement of 28 July
2004 concluded with the aforementioned company, the latter would be
responsible for the payment of any further compensation to any possible party
in connection with solidarity contribution. Furthermore, the Chamber took note
that the Respondent is of the opinion that solidarity contribution is not due in
case the player was registered with the relevant training club on a loan basis
only. Finally, the DRC acknowledged that the Respondent asserts that in case
the Chamber decides contrary to its position, the possible solidarity contribution
has to be calculated on the basis of the compensation which the player paid
to his former club D at the end of his employment and therefore the relevant
amount would be USD 900.
8.
In consideration of these positions, the Chamber referred to its well-established
jurisprudence applied in similar cases, 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 in strict application of
art. 11 of the Regulations governing the Application of the Regulations. At the
same time, 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.
9.
In addition to the above-mentioned jurisprudence, the Chamber emphasised
that in accordance with the ratio legis of the above-mentioned Regulations,
the said jurisprudence applies independently of the fact if the new club paid
the transfer compensation to the player’s former club or to a company. In
particular, the DRC stressed that the requirement which triggers the abovementioned application of the said jurisprudence, is the fact that a transfer
compensation has been paid in connection with the international transfer of
the player concerned. Finally, the Chamber deemed that every contrary
interpretation of the Regulations would violate the ratio legis of the abovementioned Regulations.
10.
Subsequently, the Dispute Resolution Chamber acknowledging that, as
established in the art. 25 par.1 of the Regulations in connection with art. 11
par.1 of the Regulations governing the Application of the Regulations and
according to the above-mentioned jurisprudence, the new club of the player is
to distribute 5% of any compensation paid for the transfer of a player to the
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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 ages of 12 and 23.
11.
In addition, the Chamber referred to art. 10 of the Regulations governing the
Application of the Regulations, which provides the figures for the distribution of
the solidarity contribution, according to the time the player was effectively
trained by the clubs involved.
12.
Consequently of the above, the Chamber decided to reject the Respondent’s
allegation according to which solidarity contribution is not due since the player
concerned was registered on a loan basis with the Claimant. This is, since
according to the jurisprudence of the Dispute Resolution Chamber the solidarity
contribution is payable to the club(s) which effectively trained and educated a
player independently of the basis on which the player was registered with a
training club, i.e. on a loan or a definitive basis.
13.
In light of the above, the Chamber outlined that, in the present case,
according to the confirmation of the football association of the country X the
period to be taken into consideration (period of registration of the player with
the club A) went from 4 December 1999 to 3 March 2000 and from 8 May to 31
December 2002, from the age of 18 to the age of 19, respectively from the age
of 20 to the age of 21. In this respect, the Chamber concluded that the period
of effective training to be taken into account corresponds to 11 individual
months.
14.
Therefore, the Chamber established that, in accordance with the breakdown
provided for in art. 10 of the Regulations governing the Application of the
Regulations, the Claimant is entitled to receive 9.16% of the 5% of the
compensation paid in relation to the transfer of the player C.
15.
Consequently of the above, the DRC decided to reject the Respondent’s
allegation according to which the solidarity contribution shall be calculated on
the basis of the compensation the player paid to his former club at the end of
his employment contract.
16.
The Chamber noted that the Respondent admitted having paid the amount of
USD 325,000 in connection with the transfer of the player to its club.
17.
Based on all of the above, the Dispute Resolution Chamber decided that the
Respondent must pay to the Claimant 9.16% of the 5% of the transfer
compensation paid in relation to the transfer of the player C, i.e. USD 1,488.50.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of A is accepted.
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2.
The Respondent has to pay the amount of USD 1,488.50 to A within 30 days as
from the date of notification of this decision.
3.
If the aforementioned sum is not paid within the aforementioned deadline an
interest rate of 5% per year will apply as of expiry of the fixed time limit and the
present matter shall be submitted to FIFA’s Disciplinary Committee, so that the
necessary disciplinary sanctions may be imposed.
A is directed to inform B directly and immediately of the account number to
which the remittance is to be made and to notify the Dispute Resolution
Chamber of every payment received.
4.
5.
According to art. 61 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:
__________________________________
Urs Linsi
General Secretary
Encl.
CAS directives
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