Solidarity Contribution
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 26 November 2015,
in the following composition:
Geoff Thompson (England), Chairman
John Bramhall (England), member
Leonardo Grosso (Italy), member
Philippe Diallo (France), member
Mohamed Mecherara (Algeria), member
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 E
I.
Facts of the case
1.
According to the player passport issued by the Football Association of country B, the
player from country B, Player E (hereinafter: the player), born on 11 June 1984, was
registered with the following clubs from country B:
Club F from 18 May 1995 until 10 March 1999;
Club G from 6 August 1999 until 21 February 2001;
Club A (hereinafter: the Claimant) from 10 May 2001 until 16 July 2004.
2.
The Football Association of country B also confirmed that the sporting season in
country B followed the calendar year.
3.
The Football Association of country D informed FIFA that the player was registered
with its affiliated club, Club C (hereinafter: the Respondent), on 25 July 2013.
4.
On 9 December 2013, the Claimant contacted FIFA claiming its proportion of the
solidarity contribution in connection with the transfer of the player from the club
from country H, Club I, to the Respondent. In this respect, the Claimant requested
31.89% of the 5% solidarity contribution, plus 5% interest p.a. as of 23 August
2013.
5.
Pursuant to the transfer agreement uploaded in the Transfer Matching System
(TMS), the transfer compensation agreed upon between Club I and the Respondent
amounted to EUR 7,120,000 net, payable on 15 August 2013 by the Respondent.
6.
Art. 2.1 of the transfer agreement stated that the aforementioned amount included
the 5% solidarity contribution.
7.
In its statement of defence, the Respondent recalled that the transfer compensation
consisted of the amount of EUR 6,780,000, plus the 5% solidarity contribution,
which in total amounted to EUR 7,120,000.
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8.
The Respondent sustained that the transfer compensation including the solidarity
contribution was entirely paid to Club I. In this regard, the Respondent provided a
bank statement indicating the amount of EUR 6,906,400 allegedly wired for the
transfer of the said player.
9.
The Respondent further alleged that it requested the Claimant to provide the player
passport in order to proceed to the payment, based on the amount of EUR
6,780,000.
10.
On 28 October 2014, the Claimant amended the amount claimed for solidarity
contribution, based on the transfer compensation in the total amount of EUR
7,120,000. The Claimant thus deemed that it was entitled to the amount of EUR
113,528.40.
11.
In spite of having been invited to do so, the Respondent did not provide its final
comments as per the matter at stake.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as DRC or
Chamber) analysed whether it was competent to deal with the case at hand. In this
respect, the Chamber took note that the present matter was submitted to FIFA on 9
December 2013. Consequently, the 2012 edition of the Rules governing the
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 members of the Chamber referred to art. 3 par. 1 of the
Procedural Rules and confirmed that in accordance with art. 24 par. 1 in conjunction
with art. 22 lit. d) of the Regulations on the Status and Transfer of Players (edition
2015), the Dispute Resolution Chamber is competent to decide on the present
matter, which concerns a dispute relating to the solidarity mechanism between
clubs belonging to different associations.
3.
Furthermore, the DRC 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 members referred, on the one hand, to art. 26 par. 1 and 2 of the
Regulations on the Status and Transfer of Players (edition 2015) and, on the other
hand, to the fact that the present claim was lodged on 9 December 2013 and that
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the player was registered with the Respondent on 25 July 2013. In view of the
aforementioned, the Chamber confirmed that the 2012 edition of the Regulations
on the Status and Transfer of Players (hereinafter: 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 DRC entered into the substance of the matter. In this respect, the
Chamber started by acknowledging all the above-mentioned facts as well as the
arguments and the documentation submitted by the parties. However, the DRC
emphasised that in the following considerations it will refer only to the facts,
arguments and documentary evidence, which it considered pertinent for the
assessment of the matter at hand.
5.
In this respect, the DRC noted that the Claimant claimed 31.89% of the 5% of the
transfer compensation paid by the Respondent to Club I, as solidarity contribution.
6.
In addition to the above, and referring to art. 6 par. 3 of Annexe 3 of the
Regulations, the Chamber took into account that according to the information
contained in the TMS, the Respondent and Club I agreed upon a compensation of
EUR 7,120,000 net for the transfer of the player payable by the Respondent on 15
August 2013.
7.
Furthermore, the DRC noted that the Respondent, for its part, had not contested
the Claimant’s claim and merely alleged that it had paid the solidarity contribution
to Club I, together with the transfer compensation, and that the Claimant should
communicate the player passport in order to proceed to such payment.
8.
Having established the above, the DRC 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.
9.
In this respect, the DRC recalled that the Football Association of country B had
confirmed that the player, born on 11 June 1984, was registered with the Claimant
as from 10 May 2001 until 16 July 2004.
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10.
On account of the above and in accordance with art. 1 of Annexe 5 of the
Regulations, the DRC considered that the Claimant is, thus, entitled to receive
solidarity contribution for the period as from 10 May 2001 until 16 July 2004.
11.
As to the issue raised by the Respondent regarding the full payment of the transfer
compensation together with the solidarity contribution to Club I, the DRC was eager
to emphasize that, pursuant to art. 2 par. 2 of Annexe 5 of the Regulations, it is the
responsibility of the new club to calculate and distribute the solidarity contribution.
The Regulations clearly established that the distribution of the solidarity
contribution was incumbent on the new club. As a result, the DRC concluded that
the Respondent was liable for the payment of solidarity contribution.
12.
In view of all of the above, and taking into account the amount of the transfer
compensation as well as the percentage requested by the Claimant in its statement
of claim, the Chamber decided that the Respondent was liable to pay EUR 113,528.4
to the Claimant as solidarity contribution in relation to the transfer of the player
from Club I to the Respondent.
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 decided that the
Respondent had to pay, in conformity with the longstanding and well-established
jurisprudence of the DRC, interest at a rate of 5% p.a. as of 25 August 2013 until the
date of effective payment.
14.
In continuation, the deciding authority 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.
15.
In this respect, the Chamber reiterated that the claim of the Claimant is partially
accepted and established that the Respondent has to bear the costs of the current
proceedings in front of FIFA.
16.
According to Annexe A of the Procedural Rules, the costs of the proceedings are to
be levied on the basis of the amount in dispute.
17.
The amount in dispute to be taken into consideration in the present proceedings
amounts to EUR 113,528.4 related to the claim of the Claimant. Therefore, the DRC
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concluded that the maximum amount of costs of the proceedings corresponds to
CHF 15,000 (cf. table in Annexe A).
18.
As a result, and taking into account the particularities of the present matter, the
complexity of the case as well as the degree of success, the DRC determined the
costs of the current proceedings to the amount of CHF 10,000, which shall be borne
by the Respondent.
19.
The Dispute Resolution Chamber concluded its deliberations in the present matter
by establishing that any further claim lodged by the Claimant is rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant is partially accepted.
2.
The Respondent has to pay to the Claimant within 30 days of the date of
notification of this decision, the amount of EUR 113,528.4 plus 5% interest p.a. as
from 25 August 2013 until the date of effective payment.
3.
In the event that the aforementioned amount is not paid 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.
5.
The final costs of the proceedings in the amount of CHF 10,000 are to be paid,
within 30 days of notification of the present decision by the Respondent to FIFA
to the following bank account with reference to case nr. XXXX:
UBS Zurich
Account number 366.677.01U (FIFA Players’ Status)
Clearing number 230
IBAN: CH27 0023 0230 3666 7701U
SWIFT: UBSWCHZH80A
6.
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 Dispute
Resolution Chamber of every payment received.
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*****
Note relating to the motivated decision (legal remedy):
According to art. 67 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
Acting Secretary General
Encl. CAS directives
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