Solidarity Contribution
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 9 November 2004,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Philippe Piat (France), member
Philippe Diallo (France), member
on the claim presented by
as Claimant
Club A.,
against
as Respondent 1
Club B.,
and
Club C.,
as Respondent 2
regarding a dispute on the payment of solidarity contribution relating to the transfers of the
player X.
Facts of the case
−
−
−
−
−
−
−
−
−
−
−
−
−
The player X. was born on 13 October 1976.
He joined the club A. during the 1991 season, at the age of 14.
At the age of 21 he was on loan at the club B. for one season.
On 2 August 2001, the player X. joined the club A.
On 30 January 2003, the player was transferred from the club Z. to the club B., for a
fee of USD 1,200,000.
Later, on 12 November 2003, the club B. and the club C. agreed on the transfer of the
player to the club C. for an amount of EUR 1,751,800, which, however, according to
the club C. was later reduced by EUR 70,000 to a total of EUR 1,681,800.
The club A. is claiming solidarity contribution for both transfers.
Despite recurring requests, the FIFA Administration received no information from the
club B., motivating its non-payment.
The club C. has indicated that it considers itself not responsible for the payment of
the solidarity contribution since it explicitly arranged with the club B. that the latter
would take charge of the payment of the solidarity contribution and that this was put
down in writing in clause 3 of the annex 1 of the transfer agreement.
In response hereto, the FIFA Administration informed the club C. of the recent
jurisprudence of the Dispute Resolution Chamber which states that the new club of a
player remains responsible for the payment of the solidarity contribution even if it
has a found agreement contrary to this principle with the former club of the player.
In such a case, and once the new club has paid the solidarity contribution to the
forming club, it can revert to FIFA in order to reclaim the amount paid in lieu of the
former club of the player.
Despite these explanations, the club C. has failed to pay the amount due to the club
A.
The club A. is claiming the full 5% of solidarity contribution for both transfers
amounting to USD 60,000 and EUR 87,500.
Considerations of the Dispute Resolution Chamber
The members of the Dispute Resolution Chamber were summoned to pass a decision on
these matters by the Chairman pursuant to Art. 1 point 6) of the Rules Governing the Practice
and Procedures of the Dispute Resolution Chamber.
As established in Art. 25 §2 of the FIFA Regulations for the Status and Transfer of Players
(hereinafter “transfer regulations”), it falls within the purview of the Dispute Resolution
Chamber to impose the observance of the obligations deriving from the entitlement to
solidarity mechanism.
The members of the Dispute Resolution Chamber commenced their deliberations by
indicating that they would first examine the claim of the club A. deriving from the transfer of
Solidarity contribution in the case of the player X.
2
the player X. from club Z. to the club B. and that, in a second step, they would consider the
claim relating to the transfer of the mentioned player from the club B. to the club C.
On the point concerning the transfer of the player X. from the club Z. to the club B., the
members of the Chamber underlined that a copy of the transfer agreement established by
these club on 28 December 2002, indicating a transfer fee of USD 1,200,000, is in its
possession. Furthermore, the Chamber maintained that the Football Association of the club
A. had confirmed the taking place of this transfer as well as the fact that the player Z. was
registered with its club A. from 1991 until 2001. Taking these facts into consideration, the
members of the Chamber established that the requirements of Art. 25 §1 of the transfer
regulations had been duly met. Consequently, the club A. is entitled to claim solidarity
corresponding to the years which the player Z. spent at its club, between the ages of 12 and
23.
Next, the members of the Chamber turned to Art. 11 §1 of the Regulations governing the
Application of the FIFA Regulations for the Status and Transfer of Players, which clearly
states that the new club of a player shall pay the amount due as solidarity contribution to the
clubs involved in the player’s training. Furthermore, this article also establishes that the
solidarity contribution is payable within 30 days of the player’s new registration. Bearing
these provisions in mind, the Chamber concluded that the club B. is responsible to the
solidarity contribution deriving from this transfer. As neither the Football Federation of the
club B. nor the club B. offered any explanations as to the reasons why the club B.failed to
comply with the requirement of paying the solidarity contribution, the Chamber established
that the club B. had simply failed to meet the obligation of payment.
The members of the Chamber next turned to the question regarding the proportion of the
solidarity contribution payable to the club A. In this context, the Chamber noted that the
player Z. joined the club A. at the age of 14 and that, at the age of 21, the player spent one
season on loan at the club Q. Bearing these facts in mind, the Chamber concluded that the
club A. is not entitled to demand the full 5% solidarity contribution but rather 80% of the 5%
solidarity contribution, corresponding to the actual time that the player spent at its club.
In light of the aforementioned, the members of the Chamber decided that the club A. is
entitled to receive 80% of the 5% solidarity contribution deriving from the player Z’s transfer
to the club B. As a result, the club B. must pay USD 48,000 to the club A. On the
aforementioned, and given that full amount of solidarity contribution should have been paid
by the end of February 2003, a default interest payment of 5% p.a. as from 1 March 2003
until the day of the payment is applied.
In continuation, the Chamber turned to the claim of the club A. originating from the
subsequent transfer of the player Z. from the club B. to the club C. In this context, the
Chamber took into consideration the explanations offered by the club C., according to which
it had contractually arranged with the club B. that the latter would take charge of any
payments over solidarity contribution.
Solidarity contribution in the case of the player X.
3
On this point, the Dispute Resolution Chamber outlined that there has recently been an
augmentation in cases relating to the non-payment of the solidarity contribution, owing to
the fact that the clubs acquiring the federative rights to players frequently omit to retain the
5% solidarity contribution payable to the clubs involved in the player’s training and
education. In such cases, the club that mistakenly paid 100% of the transfer fee agreed upon
with the former club of the player will consider itself in the clear regarding the solidarity
contribution and will ask the clubs entitled to the solidarity contribution to revert to the
former club of the player instead.
The Chamber noted that in the case at hand, the situation is rather similar, in that the clubs
B. and C. have agreed to make the club B. responsible for the payment of the solidarity
contribution and that this fact was communicated to the club A.
In this context, the Chamber reiterated that according to Art. 11 of the Regulations governing
the Application of the FIFA Regulations for the Status and Transfer of Players, it is the task of
the new club of the player to calculate the amount owed as solidarity contribution to the
clubs involved in the formation of the player and to distribute this amount in accordance
with the player’s career history. Moreover, § 1 of the mentioned article clearly stipulates that
the new club of the player must pay the amount due as solidarity contribution to the training
clubs within 30 days of the player’s registration.
The Chamber underlined that in accordance with the FIFA Regulations for the Status and
Transfer of Players, the club C. is responsible for paying the solidarity contribution to the
clubs involved in the formation of the player Z. The fact that the club C. found a different
arrangement with the club B. has no influence on the claim of the club A., given that the club
A. was not a party to this agreement. Upon paying the amount owed to A., the club C. may
revert to FIFA so as to seek the restitution of this amount from the club B.
Consequently, the club C. is liable to pay solidarity contribution to the club A. As indicated
earlier, the proportion payable to the club A. is 80% of the 5% solidarity contribution.
In this context, the members of the Chamber noted that the club C. maintains that although
the transfer fee agreed upon with the club B. was of EUR 1,751,800, the club B. had granted
it a reduction of EUR 70,000, thus reducing the final amount to EUR 1,681,800. On this
point, the members of the Chamber insisted that they had not been provided with any
documentary evidence corroborating this fact, not even a written statement of the club B.
stating that it agreed to this reduction. Therefore, the Chamber could not accept the
reduction of the transfer fee as a given fact and established that it would base the claim of
the club A. on the transfer fee of EUR 1,751,800. As a result, the club A. is entitled to
solidarity in the amount of EUR 70,072. On the aforementioned amount, and given that the
full payment of the transfer fee was due by 1 January 2004, a default interest payment of 5%
p.a. as from 1 February 2004 until the day of the payment shall apply.
Solidarity contribution in the case of the player X.
4
Decision of the Dispute Resolution Chamber
1.
The claims of the club A. are partially accepted.
2.
The respondent 1, the club B., must pay an amount of USD 48,000 to the club A. in
concept of solidarity contribution. On the aforementioned, amount a default interest
payment of 5% p.a., as from 1 March 2003 until the day of the payment, is applied.
3.
The respondent 2, the club C., must pay an amount of EUR 70,072 to the club A. in
concept of solidarity contribution. On the aforementioned, amount a default interest
payment of 5% p.a., as from 1 February 2004 until the day of the payment, is applied.
4.
The club B. and the club C. are directed to pay the amounts due to the club A. within
30 days as from the date of the notification of this decision.
5.
According to art. 60 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 10 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:
Avenue de l’Elysée 28
1006 Lausanne
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
Enclosed: CAS directives
Solidarity contribution in the case of the player X.
5