Solidarity Contribution
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 21 November 2006,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Paulo Rogerio Amoretty Souza (Brazil), member
Ivan Gazidis (USA), member
Carlos Soto (Chile), member
John Didulica (Australia), member
on a claim presented by
the club, D, X
represented by Mr. , Lawyer
as “Claimant”
against
the club, I, XX
as “Respondent”
regarding the solidarity contribution related to the transfer of the player,
C
./…
I.
Facts of the case
1.
The X Football Association has confirmed that the player C was born on 26
December 1979 and was registered with its affiliated club D from 11 January
1993 until 14 December 2000, i.e. between the ages of 13 and 20.
2.
On 31 August 2004, the player C was transferred from the XX club J to the fellow
XX club I.
3.
On 15 October 2004, the X club D lodged a complaint with FIFA against the XX
club I regarding the payment of a solidarity contribution. D alleged that I paid to
J. the sum of YYY 10,000,000 in connection with the transfer of the player C.
4.
FIFA referred the X club D to the jurisprudence of the Dispute Resolution
Chamber (in particular in a decision passed on 22 July 2004) in similar cases, in
accordance with which the principle regarding the solidarity mechanism
contained in the Regulations for the Status and Transfer of Players (edition
September 2001) is not applicable to national transfers, not even in cases where
the club claiming the payment of the relevant contribution is affiliated to
another association. The said jurisprudence particularly refers to par. 1 of the
Preamble of the aforementioned Regulations which establishes that the
Regulations deal with the status and eligibility of players, as well as with the rules
applicable whenever players move between clubs belonging to different
associations. Equally, in its relevant jurisprudence, the Chamber points out that
the principle of the solidarity mechanism is not binding at national level (cf. par.
2 of the Preamble of the said Regulations).
5.
D responded to FIFA that it was in total disagreement with the invoked
jurisprudence of the Dispute Resolution Chamber (DRC), in essence basing its
position on the following arguments:
•
The DRC is competent to hear this matter because it concerns clubs from
different associations (X and XX) and therefore, the case is of an
international nature. In support of the above, the X club referred to the
decision of the DRC no. 55102 dated 13 May 2005, in which the DRC
confirmed the international nature of the dispute on the basis of the parties’
nationality. Consequently, the international nature that justifies the
application of FIFA’s regulations and the intervention of its deciding bodies
arises from the different nationalities of the parties to a dispute. This ensures
that the aims pursued in the regulations are met.
•
In its decision of 22 July 2004 cited by FIFA, the DRC expressly recognised its
competence to hear solidarity contribution claims.
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Solidarity contribution for the player C
(D, X / I., XX)
•
It is evident that the purpose of establishing the solidarity mechanism is to
benefit the training clubs (cf. FIFA circular no. 769 dated 24 August 2001),
irrespective of whether the transfer at the basis of a specific claim for the
relevant contribution was between two clubs that belong to the same
association or not, as the most important factor is that the claimant club
belongs to a different association than the respondent club.
•
If FIFA is not competent, it becomes impossible for training clubs to exercise
the right to receive a solidarity contribution in cases of transfers between
clubs that belong to the same association.
•
The Preamble of the Regulations for the Status and Transfer of Players
(edition September 2001) establishes that the associations have to draw up
their own regulations to govern the domestic transfer system. However, very
few associations have done so. In the absence of any such regulations, the
pertinent FIFA regulations need to be directly applicable. The XX Football
Federation should have drawn up such regulations, which would have been
the applicable legislation in this case. However, since the XX Federation has
not done so, the DRC must be the competent body to deal with the present
matter and apply its regulations. The negligence or passivity of an
association should not prevail over the legitimate right of a training club to
profit from a system established by FIFA for its benefit.
•
Even in the event that the XX Federation had drawn up its own regulations
on domestic transfers, it would be virtually impossible to admit a foreign club
(i.e. a non-member of the XX Federation) as a claimant. This situation leaves
D with no legal redress and makes it impossible for the club to enforce any
possible decision.
•
FIFA’s regulations provide for differential treatment for certain transfers within
the European Union (EU) (e.g. protection of minors and training
compensation).
•
The jurisprudence of the DRC infringes principles of European Community
Law and discriminates international transfers inside the territory of the EU in
favour of domestic transfers. In fact, if the transfer of the player had been to
a club belonging to a European association other than the XX Federation, D
would have received the solidarity contribution.
•
The principles of European law do not permit differential treatment
depending on whether the transfer of a player takes place within a single
member state or not. In particular, in the present case the Italian club would
have an additional incentive to transfer a player to another XX club instead
of to a club from another association, because it would save itself from
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Solidarity contribution for the player C
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having to pay the solidarity contribution. From the standpoint of European
law it is illegal not to treat the transfer of players within the EU on an equal
basis irrespective of whether they are between clubs from the same
association or two different associations.
•
The Claimant submitted a detailed report on the European laws that have
allegedly been infringed. In particular, it points out that failure to apply the
solidarity mechanism to domestic transfers constitutes a decision by a
business association (FIFA) and that said decision distorts the competition
between clubs and players. The Claimant particularly considers arts. 81 and
82 of the European Community Treaty to have been infringed by FIFA’s
jurisprudence.
6.
In view of the above, D requests the Dispute Resolution Chamber to reconsider
the jurisprudence laid down in its decision of 22 July 2004 and to recognise the
club´s right to receive the corresponding solidarity contribution related to the
transfer of the player C.
7.
For its part, Inter informed FIFA that they categorically rejected the X club’s
claim, on the basis that the FIFA regulations are not applicable to transfers
between two clubs that belong to the same association, and also cited the
decision of the Dispute Resolution Chamber of 22 July 2004.
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 15 October
2004, 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 to 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 September 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
non-amateur player C during the course of a contract.
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Solidarity contribution for the player C
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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 non-amateur had
been registered for his new club on 31 August 2004. Equally the Chamber took
note that the claim was lodged at FIFA on 15 October 2004. In view of the
aforementioned, the Chamber concluded that the former FIFA Regulations for
the Status and Transfer of Players (edition September 2001, hereinafter: the
Regulations) are applicable on the case at hand as to the substance.
5.
In continuation, and entering into the substance of the matter, the Chamber
acknowledged that, for the case at hand, it was essential to establish whether
an internal transfer, this means a move of a player from one club to another,
both affiliated to the same association, could be the basis for a claim for
solidarity contribution or not. In other words, the Dispute Resolution Chamber
recognised that in view of D´s disagreement with the existing jurisprudence, first
of all, it would once again have to address a matter of principle. If it were to
follow its own jurisprudence, which it had previously answered in a certain way
within the scope of its appreciation of similar cases. In its submissions regarding
the application of the Regulations, to which also the Respondent referred to, no
solidarity contribution would be due whenever a player is transferred from one
club to another both affiliated to the same association. This principle would
apply regardless of whether the claiming club is affiliated to a different
association, like in the case at issue, or to the same association as that of the
two clubs directly involved in the relevant transfer at the basis of the claim.
6.
The members of the deciding authority stressed that the answer to the central
question related to the case at stake needs, first and foremost to be sought in
the wording and systematics of the Regulations. In this respect, the Chamber
referred to the contents of the Preamble of the Regulations and in particular to
its par. 1 which establishes that the Regulations deal with the status and
eligibility of players, as well as with the rules applicable whenever players move
between clubs belonging to different associations. Like in previous decisions,
the deciding body lent emphasis to the wording of the last part of the
aforementioned clause and reiterated that, in fact, the Regulations are not
applicable to transfers of players between two clubs affiliated to the same
association. The deciding body did not see any reason which would justify the
departure from this understanding, which as it was emphasised, is the result of
the clear wording of the Regulations.
7.
In continuation, the Chamber pointed out once again that the principle of the
solidarity mechanism is not included in par. 2 of the Preamble of the Regulations
and therefore, it is not binding at national level.
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Solidarity contribution for the player C
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8.
In view of the above, the members of the Chamber unanimously concluded
that, in confirmation of the jurisprudence of the Dispute Resolution Chamber,
the principle regarding the solidarity mechanism contained in the Regulations is
not applicable to national transfers, not even in cases, like in the one at issue,
where the club claiming the payment of the relevant contribution is affiliated to
another association.
9.
As a result, the Chamber confirmed its established jurisprudence applied in
cases in which the basis of the claim for solidarity contribution was, like in the
case at hand, the transfer of a player between two clubs affiliated to the same
association.
10.
Referring to certain points of the Claimant’s submission, for the sake of good
order and so as to avoid misunderstandings the Chamber deemed it important
to point out that, contrary to what the Claimant appears to have understood,
the Dispute Resolution Chamber never objected to its competence to deal with
disputes regarding solidarity mechanism where the claiming and the
responding club belong to different associations. This principle has always been
applied even in the case where the transfer of a player at the basis of the claim
occurred between two clubs belonging to the same association. However, in
the latter case (domestic transfer) under the light of the Regulations (Preamble,
par.1 and 2) and the aforementioned established jurisprudence the principle of
the Regulations regarding the solidarity mechanism is not applicable.
11.
Moreover, and for the sake of completeness, the Chamber stressed that par. 3
of the Preamble of the Regulations, and also the current Regulations (edition
July 2005) in its art. 1 par. 2 state that the specific regulations governing national
transfers issued by the association concerned should also foresee a system to
reward the clubs investing in the training and education of young players. Yet,
the Chamber underlined that the member associations are free to decide on
the kind of system they would like to introduce to reward the clubs investing in
the training and education of players. In other words, they do not necessarily
have to provide a solidarity mechanism which follows the role model of the
Regulations.
12.
In this respect, the Chamber explained that in case an association would
decide to implement at national level in its own regulations a solidarity
mechanism, like the one contained in the relevant FIFA regulations, the
pertinent system would obviously also have to be applied to training clubs
belonging to different associations. The Dispute Resolution Chamber would thus
be in a position to protect the rights of such foreign clubs, even in cases where
the transfer at the basis of a claim would be an internal one.
13.
Finally, the Chamber pointed out that art. 26 par. 3 of the current Regulations
(edition July 2005), establishes a deadline on 30 June 2007 for the member
associations to submit their own regulations to FIFA for its approval.
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Solidarity contribution for the player C
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14.
On account of all the above, the Dispute Resolution Chamber decided that the
claim of the D against I for payment of solidarity contribution has to be
rejected.
III. Decision of the Dispute Resolution Chamber
1.
The claim of the X club, D, is rejected.
2.
According to the 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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Solidarity contribution for the player C
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