Official Documents
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC)
passed in Zurich, Switzerland, on 24 November 2011,
in the following composition:
Geoff Thompson (England), Chairman
Guillermo Saltos Guale (Ecuador), member
Carlos Soto (Chile), member
Theodoros Giannikos (Greece), member
TakuyaYamazaki (Japan), member
on the claim presented by the club,
X,
as Claimant
and the club,
Y,
as Respondent
regarding solidarity contribution related to the transfer
of the player R
I.
Facts of the case
1.
According to a statement issued by the Amateur League – affiliated to the Football
Federation S and the latter, in its turn, to the Football Association B (hereinafter: FAB) –
dated 30 January 2007, the player, R (hereinafter: the player), born on 25 January 1984,
was registered with the club, X (hereinafter: X or the Claimant), as from January 1995
until December 1997. By means of its legal representative, X confirmed the player’s
registration as from 1 January 1995 until 31 December 1997.
2.
Furthermore, a statement provided by the Football Federation S, dated 15 February
2007, establishes that “[…] the amateur Football League is duly affiliated to the
Football Federation S since 11 March 2005”.
3.
The Football Association B, by means of its correspondence dated 4 March 2008,
confirmed the aforementioned information and consequently stated that no
information regarding the League prior to 11 March 2005 is available; therefore, the
registration with X cannot be officially confirmed.
4.
The sporting season in country B follows the calendar year, i.e. from January to
December every year.
5.
The Football Federation Y confirmed that the player was registered for its affiliated
club, Y (hereinafter: Y or the Respondent), on 26 August 2005.
6.
On 31 July 2007, X lodged a claim in front of FIFA requesting that Y should proceed
with the payment of solidarity contribution in the amount of USD 150,000, plus
interests of 5% p.a. as from the date the payment became outstanding, corresponding
to 10% of 5% of the transfer compensation, in connection with the transfer of the
captioned player from the club, F.C. S (hereinafter: F.C. S), to the club, Y, for the alleged
amount of USD 30,000,000.
7.
X requests, moreover, Y should bear the legal expenses in the amount of EUR 5,000.
8.
In its response, Y argues having paid the entire transfer compensation to F.C. S, in order
to obtain the player’s International Transfer Certificate (hereinafter: ITC). Therefore,
F.C. S should be responsible for the payment of the solidarity contribution.
9.
In addition, Y states that, having contacted F.C. S on the matter at hand, the latter
argued that there is no evidence of the player ever being registered with X, as shown in
the player’s passport issued by the Football Association B in July 2007.
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10.
According to the aforementioned player’s passport issued by the Football Association B
in July 2007, no record was found for the period comprised between 1 January 1996
and 5 May 1999 and the player’s very first registration was with F.C. S, on 6 May 1999.
11.
In its replica, X maintains its previous arguments and states to ignore the reasons for
which the Football Federation S refuses to confirm the registration of the player with X
to the Football Association B, which consequently cannot issue a complete version of
the player’s passport.
12.
Furthermore, X provided an extract of the player’s official website, in which the
following is stated: “Found by the coach, he quickly changed from futsal to football in
1994 and went to play for X. From there to the young categories of F.C. S, neighbor of
X, it did not take long”.
13.
After FIFA requested the Football Association B to provide an official statement of the
player clarifying his registration between 1 January 1995 and 31 December 1997, for
which the player’s passport from July 2007 showed no record, the Football Association B
provided a rectified player’s passport from October 2008, in which the player was
registered with F.C. S as from 1 January 1996 until 31 March 2001, as an amateur, and as
from 1 April 2001 until 25 August 2005, as a professional.
14.
Furthermore, the Football Association B provided a written statement from the player,
dated 14 October 2008, in which the latter confirmed having played as an amateur for
F.C. S as from 1 January 1996 until 30 April 1999.
15.
In its duplica, Y states that, since the player was registered with F.C. S from the age of
12 until 21, according to the Football Association B’s rectified player’s passport, the
solidarity contribution is due to F.C. S only and was already paid in August 2005.
16.
X, nonetheless, refuses the new registration dates of the player with F.C. S and insists
that, as from 1 January 1995 until 31 December 1997, the player was registered with X.
Thus, X questions the authenticity of the rectified player’s passport issued by the
Football Association B and points out that F.C. S is one of the biggest and most
influential clubs in country B.
17.
X questions, furthermore, the fact that the rectified player’s passport from July 2007
includes modifications deriving from the player’s personal declaration from 14 October
2008, the authenticity of which was not recognized by a notary public.
18.
Finally, X provided a statement signed by the player, dated 23 January 2009 and
recognized by a notary public, in which the following is stated: “I […] make clear for all
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due legal effects that I have been registered with the country B Football Club ‘X as an
amateur football player, beginning on January 1993 until the end of December 1996”.
19.
In its final position, Y maintains its previous arguments.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter: the Chamber or the DRC)
analysed which procedural rules are applicable to the case at hand. In this respect, it
took note that the present matter was submitted to FIFA on 31 July 2007. Consequently,
the 2005 edition of the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules), is
applicable to the matter at hand (cf. art. 18 par. 2 and 3 of the 2005 Procedural Rules
and art. 21 par. 2 and 3 of the 2008 Procedural Rules).
2.
In continuation, 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 lit. d) of
the Regulations on the Status and Transfer of Players (edition 2005; hereinafter: the
Regulations), the Dispute Resolution Chamber was competent to adjudicate on a
dispute relating to the payment of solidarity contribution between a country B club and
a country S club.
3.
Furthermore, the Chamber analysed which regulations were applicable as to the
substance of the matter. In this respect, it confirmed that, in accordance with art. 24
par. 1 and with art. 29 of the 2005 edition of the FIFA Regulations, and with art. 26 par.
1 and 2 and art. 29 of the 2008 edition of the Regulations on the Status and Transfer of
Players, and considering that the present claim was lodged on 31 July 2007 and that the
player was registered with the Respondent on 26 August 2005, the 2005 edition of said
Regulations was 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. The members of the
Chamber started by acknowledging the above-mentioned facts and the documentation
contained in the file.
5.
In particular, the Chamber noted that the Claimant had lodged a claim against the
Respondent, requesting its share of solidarity contribution related to the transfer of the
player from the country B club, F.C. S, to the country S club, Y, in the amount of USD
150,000, i.e. 10% of 5% of the transfer compensation, plus interests of 5% p.a. as from
the date the payment became outstanding, as well as legal expenses in the amount of
EUR 5,000.
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6.
In particular, the Chamber noted that, on the one hand, the Claimant based its request
and the calculation of the allegedly due amount of solidarity contribution on a
statement of the Amateur League, dated 30 January 2007, and on a statement of the
captioned player, dated 23 January 2009. While the statement of the Amateur League
indicated that the player was registered with X from January 1995 until December 1997,
that of the player indicated that his registration with X started in January 1993 and
ended in December 1996.
7.
On the other hand, the members of the Chamber noted that the Respondent stated
that the Claimant was not able to provide any conclusive evidence of the player’s
registration with X. According to the first player’s passport of July 2007, provided by the
Football Association B, there exists no record of the player’s registration with any club
for the period comprised between 1 January 1995 and 31 December 1997. The DRC
equally noted that the Respondent argues that the second passport issued in October
2008 by the Football Association B, rectified as per the player’s statement of 14 October
2008, would neither entitle the Claimant to any type of compensation, since it showed
that the player was registered with F.C. S as of 1 January 1996 until 25 August 2005 and
could not have possibly been registered with X as from 1 January 1995 until 31
December 1997, as argued by the latter.
8.
Further, the Chamber took note that the Claimant, in view of the aforementioned
statements of the Respondent, argues that the information contained in both player
passports provided by the Football Association B – of July 2007 and of October 2008 –
are incorrect, and pointed out that F.C. S is one of the biggest and most influential clubs
in country B.
9.
In view of the above, the Chamber observed that the main question of dispute to be
analysed in the present matter is the player’s registration for the period between 1
January 1995 and 31 December 1997, i.e. whether the player was registered with the
Claimant for the aforementioned period. In this respect, the Chamber considered the
question of the involvement of the Claimant in the training and education of the player
as an essential prerequisite to establish its entitlement to solidarity contribution.
10.
In continuation, the Chamber deemed it important to emphasize that, as a general rule,
as established in art. 21 of the Regulations in connection with its Annex 5, 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 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
club(s) between the sporting seasons of his 12th and 23rd birthdays.
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11.
At this point and for the sake of good order, the Chamber also reminded the parties of
the basic principle of burden of proof, as stipulated in art. 12 par. 3 of the Procedural
Rules, according to which a party claiming a right from an alleged fact shall carry the
respective burden of proof.
12.
Bearing in mind all the aforementioned, the Chamber proceeded to analyze all the
documentation provided to FIFA by the parties, in particular the statement of the
Amateur League, the statement of the Football Federation S, the two player passports
issued by the Football Association B, and the two declarations allegedly provided by the
player, in order to establish his registration for the period between 1 January 1995 and
31 December 1997, and consequently, establish whether the Claimant has the right to
claim the payment of solidarity contribution from the Respondent. In case the DRC
deems that the Claimant is indeed entitled to receive solidarity contribution from the
Respondent, the Chamber will then proceed with the calculation of the amount due.
13.
Firstly, the DRC recalled the wording of the statement of the Amateur League, dated 30
January 2007, according to which “The player R was duly registered before this
institution and participated in official competitions recognized by the Football
Federation S, for X […] during the period between January/1995 and December/1997”.
14.
Furthermore, the Chamber recalled the wording of the statement of the Football
Federation S, dated 15 February 2007, which established that “[…] the amateur Football
League is duly affiliated to the Football Federation S since 11 March 2005”.
15.
Subsequently, the DRC took note that the first player’s passport submitted was issued by
the Football Association B in July 2007 and provided for the following registration
periods of the player: as from 1 January 1996 to 5 May 1999, there was no record found
of any registration regarding the player in question; as from 6 May 1999 until 31 March
2001, the player was registered as an amateur with F.C. S; and as from 1 April 2001 until
25 August 2005, the player was registered as a professional, also with F.C. S.
16.
Equally, the Chamber took into account that the second player’s passport submitted was
issued by the Football Association B in October 2008 and provided for the following
registration periods of the player: as from 1 January 1996 until 31 March 2001, the
player was registered as an amateur with F.C. S; as from 1 April 2001 until 25 August
2005, the player was registered as a professional, also with F.C. S
17.
The members of the DRC further took due note of the first statement of the player,
dated 14 October 2008 and remitted to FIFA by the Football Association B, according to
which the player declares having “played as amateur for the F.C. S, from 1 January 1996
to 30 April 1999”.
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18.
In continuation, the DRC was furthermore eager to refer to the second statement of the
player, dated 23 January 2009, provided by the Claimant, by means of which he declares
to “have been registered with the country B Football club X as an amateur football
player, beginning on January 1993 until the end of December 1996”.
19.
In view of the above-mentioned, the DRC observed that the information contained in
the documentation provided by the parties in the present case is completely
contradictory on what concerns the registration of the captioned player between the
period of 1 January 1995 and 31 December 1997.
20.
Therefore, the Chamber deemed that, in order to be able to establish the Claimant’s
entitlement to solidarity contribution, it would have to identify which is the
fundamental documentation to establish a player’s career, which can in good faith be
relied upon by the parties. In case the information contained in such documentation is
disputed by any of the parties, the Chamber would have to analyze whether consistent
evidence of the contrary has been presented by the party that contests its validity, in
accordance with art. 12 par. 3 of the Procedural Rules.
21.
In this respect and before analyzing the arguments and the relevant supporting
documentation presented by the Claimant, the DRC was eager to emphasize that, for
claims regarding the payment of solidarity contribution, on the basis of art. 21 and
Annex 5 of the FIFA Regulations, the player’s passport issued by a football Association,
which is affiliated to FIFA, is the relevant document in order to establish the
entitlement of a party to such payment and is the basis of the calculation of its amount.
In other words, the members of the Chamber were of the opinion that, in principle, a
party that is responsible for the distribution of the solidarity contribution has to be able
to rely on a document issued by an Association, duly affiliated to FIFA.
22.
In view of the above, the members of the Dispute Resolution Chamber stated that the
player’s passport issued by an Association is decisive for the establishment of the history
of the player’s registration with clubs and, as such, shall be taken into account should
the interested party not be able to provide well-founded evidence to the contrary.
Therefore, the DRC pointed out that, in the present case, the Claimant, X, bears the
burden of proof in demonstrating that the information contained in the player’s
passport provided by the Football Association B was to be incorrect.
23.
In this context, the members of the DRC took note of the fact that the Claimant claims
the payment of solidarity contribution for the period of 1 January 1995 until 31
December 1997, based on the transfer of the captioned player from F.C. S to Y, on 26
August 2005.
24.
However, the DRC observed that the first player’s passport, issued by the Football
Association B in July 2007, establishes that no record was found for the period of 1
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January 1996 to 5 May 1999, and the second player’s passport, rectified by the Football
Association B in October 2008, provided for the registration of the captioned player
with F.C. S as from 1 January 1996 until 25 August 2005. In view of the aforementioned,
the DRC observed that neither the information contained in the player’s passport of July
2007 nor that contained in the player’s passport of October 2008 is able to sustain the
Claimant’s allegation concerning the captioned player’s registration with X as from 1
January 1995 until 31 December 1997.
25.
Proceeding in the analysis of the documentation provided by the parties in the case at
hand, the Dispute Resolution Chamber further noted that the statement of the
Amateur League, dated 30 January 2007, according to which the player was registered
with X from January 1995 until December 1997, could not be confirmed by the Football
Association B, as stated in its correspondence dated 4 March 2008, since the
aforementioned League is affiliated to the Football Federation S only since 11 March
2005 and, therefore, according to the Football Association B, any information prior to
that date regarding registration dates could not be verified. Thus, the members of the
DRC concluded that the information contained in said statement alone could not be
regarded as consistent enough to establish the right of the Claimant to solidarity
contribution.
26.
In continuation of the analysis of the provided evidence, the DRC observed that the
statements provided by the player with regard to his registration for the period
comprised between 1 January 1995 and 31 December 1997 are completely divergent.
While the first statement, dated 14 October 2008 and provided by the Football
Association B, indicates a registration period with F.C. S as from 1 January 1996 until 30
April 1999, the second one, dated 23 January 2009 and provided by the Claimant,
mentions the player’s alleged registration with X as from January 1993 until December
1996.
27.
Taking into account the above-mentioned documentation, the DRC noted that none of
the player’s statements provided in the case at hand are able to confirm the position of
the Claimant, regarding the player’s registration with X as from 1 January 1995 until 31
December 1997.
28.
In this regard, the Chamber was also eager to emphasize that the information
contained in a player’s statement is of mainly subjective perception and might be
affected by diverse contextual factors; therefore, such type of documentation is
considered as of limited reliability to be taken into account as evidence.
29.
Subsequently, the members of the DRC took note of the extract from the player’s
website submitted by the Claimant, according to which the player started playing for X
in 1994, before being transferred to F.C. S. In this regard, the Chamber was eager to
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emphasize that the aforementioned information was also not consistent with the
player’s alleged registration dates with X indicated by the Claimant. Furthermore, the
Chamber pointed out that, in view of its unofficial nature and possibly reduced
credibility, information extracted from a website cannot be considered as conclusive
documental evidence.
30.
In view of the above, bearing in mind the principle of burden of proof, taking into
account the entire documentation provided by the parties in the present matter and
bearing in mind the contradictory positions of the parties, the DRC was eager to
enlighten the fact that it could not acquire the certainty that the player had indeed
played for the Claimant between 1 January 1995 and 31 December 1997, necessary for
the establishment of the right of a party to receive solidarity contribution. Therefore,
the Chamber was of the opinion that no conclusive indications that the player had ever
been registered with the Claimant were present in the current case.
31.
On the basis of all the above-mentioned considerations, the Chamber concluded that, in
the absence of conclusive indication to the player’s registration with X as from 1
January 1995 until 31 December 1997, in view of the information contained in the
player’s passports provided by Football Association B, as well as the statement of the
latter, according to which no information concerning the player’s registration with clubs
prior to 11 March 2005 can be confirmed, the claim of the Claimant for the solidarity
contribution for the aforementioned period must be rejected.
32.
Finally and for the sake of good order, the DRC held that the Claimant’s claim
pertaining to legal costs is rejected, in accordance with art. 15 par. 3 of the Procedural
Rules and the Chamber’s respective longstanding jurisprudence.
III.
Decision of the Dispute Resolution Chamber
The claim of the Claimant, X, is rejected.
*****
Note relating to the motivated decision (legal remedy):
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According to art. 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:
Jérôme Valcke
Secretary General
Enclosed: CAS directives
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