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 a matter between
the club, A, X
and
the club, B, Y
and
the club, C, X
as Intervening party
regarding the solidarity contribution related to the
transfer of the player D.
I.
Facts of the case
1.
On 5 September 2003, the club B from the country Y and the club C from the
country X concluded a contract regarding the international transfer of the
player D, born on 11 April 1976, for the amount of USD 1,000,000. A copy of the
relevant transfer contract was submitted to FIFA.
2.
According to a written statement of the football association of the country X,
the player in question was registered for the club A from the country X from 12
March 1993 to 7 April 1998, from 9 July 1998 to 11 March 1999 and from 7 to 10
September 1999, from the age of 16 to the age of 21, respectively at the age of
22 and 23. From 12 March 1993 to 25 January 1996 the player was registered as
an amateur player and as from 26 January 1996 as a professional player.
3.
On 12 May 2005, A sent a complaint against B to FIFA regarding the payment of
solidarity contribution in respect of the player D. In particular, A demanded 70%
of the 5% solidarity contribution, i.e. USD 35,000.
4.
In reply hereto, B maintained that since it paid the entire transfer compensation
to the player’s former club, C, it would be the latter who is responsible to pay
the relevant solidarity contribution to A.
5.
On 9 November 2005, FIFA informed the clubs concerned by the present
procedure of the well-established jurisprudence of the Dispute Resolution
Chamber applied in cases in which the new club omitted to deduct the
relevant proportion(s) of the 5% solidarity contribution, from the paid
compensation, and invited them to consider it accordingly.
6.
In the following, C maintained that the complaint of A is prescript, since the
transfer and registration of the player in question occurred on September 2003.
Furthermore, it is of the opinion that the new club is responsible to calculate and
distribute the amount of the solidarity contribution.
7.
In reply hereto, B rejected the position of C and insisted on its position.
8.
Equally, A adhered to its position.
9.
On 28 March 2006, FIFA asked the clubs concerned by the present procedure
to present their final statements by 11 April 2006, respectively until 24 April 2006,
otherwise it would assume that the clubs concerned renounce to further
statements.
10.
On 30 March 2006, A reiterated its position.
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11.
On 19 April 2006, C denied being a party of the present procedure.
Furthermore, it insisted that according to the FIFA Regulations the new club only
is responsible for the payment of the solidarity contribution and that the abovementioned jurisprudence, therefore, would violate the FIFA Regulations. Finally,
the club informed FIFA that according to an agreement concluded with the
player in question, it shared the amount received for the transfer with the
player. As a consequence, if FIFA would oblige it to unfairly pay solidarity
contribution, it shall be the amount equivalent to the half of the 5%, i.e. 2,5%. In
this respect, the club C presented FIFA a copy of the aforementioned
agreement concluded with the player on 17 January 2000.
12.
B did not present a final statement.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Chamber 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 12 May 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 A in connection with the transfer of the professional
player D during the course of a contract.
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 in September 2003. Equally the Chamber took note
that the claim was lodged at FIFA in May 2005. In view of the aforementioned,
the Chamber concluded that the former FIFA Regulations for the Status and
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Transfer of Players (edition 2001, hereafter: the Regulations) are applicable on
the case at hand as to the substance.
5.
In continuation, and with regard to C’s allegation, according to which the
complaint of A was prescript, the Dispute Resolution Chamber referred to art. 44
of the Regulations in connection with art. 4 of the Rules governing the Practice
and Procedures of the Dispute Resolution Chamber (edition 2002, hereafter: the
Procedural Rules). In accordance with the said articles, the Dispute Resolution
Chamber will not hear any dispute if more than two years have elapsed since
the facts leading to the dispute arose. In this respect, the Chamber recalled
that the facts leading to the present matter, i.e. the transfer of the player
concerned, occurred in September 2003 and the present complaint was
presented by A on 12 May 2005, i.e. prior than the aforementioned two years
period elapsed. Consequently, the Dispute Resolution Chamber decided to
reject C’s allegation regarding prescription.
6.
Subsequently, 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.
7.
In this respect, the Chamber duly noted that, on the one hand, B (the player’s
new club) asserts having paid the entire amount of USD 1,000,000, agreed upon
as transfer compensation, to C (the player’s previous club). Furthermore, it
acknowledged that B is of the opinion that C therefore would be responsible for
the payment of any further compensation to any possible third club in
connection with solidarity contribution. In other words, B omitted to deduct 5%
of the relevant transfer compensation relating to the solidarity mechanism.
8.
On the other hand, the Chamber observed that C is convinced that the new
club of the player only is responsible to calculate and distribute the amount of
solidarity contribution.
9.
In this respect, 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.
10.
The said jurisprudence is based on the fact that there is no contractual link
between the training club claiming for solidarity contribution and the player’s
former club. Therefore, the relevant claim does not find a contractual basis. Yet,
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the Regulations clearly establish that the distribution of the solidarity contribution
is incumbent on the new club. As a consequence, the Regulations provide for a
legal basis for the claim of the training club against the new club, yet not for a
claim against the player’s former club. Finally, the new club and the previous
club are bound by a contractual agreement, which needs to be respected.
11.
Consequently of the above, the Chamber decided to reject the argument of C
of not being a party to the present procedure. In addition hereto, the Chamber
stated that it has also to reject the argument of C according to which the
agreement concluded between C and the player in question of 17 January
2000 (cf. point I.11.) has to be taken into consideration in the present
procedure. This is, since the above-mentioned jurisprudence does not establish
a legal basis that would include the consideration of other agreements than
the above-mentioned relevant transfer agreement. Equally, the Chamber
emphasised that due to the fact that it appears that C and the player are both
of the same nationality, C has to be referred with this argument, respectively
with its possible and future separate claim, to the competent national deciding
bodies.
12.
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, the new
club of the player is to distribute 5% of any compensation paid to the previous
club 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 ages of 12 and 23.
13.
For the sake of completeness, the Chamber referred to the FIFA circular no. 826
dated 31 October 2002, which clearly establishes that the 5% solidarity
contribution is to be deducted from the amount payable to the player’s former
club, i.e. in the present matter from the amount paid to C.
14.
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.
15.
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 12 March 1993 to 7 April 1998, from 9 July 1998 to 11
March 1999 and from 7 to 10 September 1999, when the player was 16 until his
age of 21, respectively his age of 22 and 23. In this respect, the Chamber
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concluded that the period of effective training to be taken into account
corresponds to 4 entire seasons and 21 individual months.
16.
Therefore, the Chamber established that, in accordance with the breakdown
provided for in art. 10 of the Regulations governing the Application of the
Regulations, A is entitled to receive 57.46% of the 5% of the compensation paid
in relation to the transfer of the player D from C to B.
17.
The Chamber noted that according to the transfer contract remitted to the file
the player D was transferred for the amount of USD 1,000,000.
18.
Based on all of the above, the Dispute Resolution Chamber decided that B
must pay to A 57.46% of the 5% of the transfer compensation paid in relation to
the transfer of the player D, i.e. USD 28,730 and that C must reimburse the
amount of USD 28,730 to B.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of A is partially is accepted.
2.
B has to pay the amount of USD 28,730 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.
4.
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.
5.
C has to reimburse the amount of USD 28,730 to B within 30 days of notification
of the present decision.
6.
If the aforementioned sum is not paid within the aforementioned deadline an
interest rate of 5% per year will apply as of expiring 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.
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7.
B is directed to inform C 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.
8.
Any further claims from A are rejected.
9.
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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