Solidarity Contribution
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 2 November 2007,
in the following composition:
Slim Aloulou (Tunisia), Chairman
John Didulica (Australia), member
Gerardo Movilla (Spain), member
Mohamed Mecherara (Algeria), member
Essa M. Saleh Al Housani (United Arab Emirates), member
on a matter between
the club, A, X
represented by Mr S
and
the club, B, Y
and
the club, C, Z
as intervening party
regarding the solidarity contribution related to the
transfer of the player D.
I.
Facts of the case
1.
The X player, D (hereinafter: the player), born on 18 January 1984, was registered
with the X club, A (hereinafter: the Claimant) from 22 March 1995 to 9 January
2006.
2.
In this regard, the X Football Association confirmed that the player was registered
for A as an amateur from 22 March 1995 to 13 May 2002 and as a professional
from 13 May 2002 to 9 January 2006.
3.
The Y club, B, and the Z club, C agreed on 23 November 2006 to transfer the
player to the Y club in return of compensation of USD 4,650,000 payable in two
installments (USD 2,400,000 paid on 7 December 2006 and USD 2,250,000 payable
on 31 July 2007).
4.
On 4 January 2007, the Claimant submitted a claim to FIFA against B for solidarity
contribution in the amount of EUR 202,500 payable with interest.
5.
With regard to the claim for solidarity contribution, B declared that in general it is
willing to pay the solidarity contribution to the Claimant. But B argued that 5% of
any compensation paid to a player’s former club shall be deducted from the total
amount of this compensation and that, in case the player’s new club omits to
deduct said percentage, the player’s former club is usually ordered to reimburse
the 5% of the compensation that it received from the player’s new club. In this
respect, B claimed that C should reimburse the 5% of the transfer compensation.
Furthermore, B asked that the Dispute Resolution Chamber should establish the
exact amount of the solidarity contribution.
6.
On 4 July 2006, 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.
7.
C stated that the second article of the relevant transfer agreement defines clearly
that the transfer amount to be paid is to be understood as net price and this
means free from any expenses. Therefore B is not entitled to claim the
reimbursement of the applicable amounts of solidarity contribution.
8.
Article 2 of the said agreement reads as follows: “The NET price of the present
transfer is agreed in FOUR MILLION SIX HUNDRED FIFTY THOUSAND USA DOLLARS
(4,650,000) that it will be paid”.
9.
Subsequently, the Claimant declared that the arguments of C are irrelevant
because the amount of the solidarity contribution is only due by B, and it had not
Distribution of the Solidarity Contribution for the player D
(A/ B/ C)
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been involved in the transfer agreement concluded between B and C.
Furthermore, the Claimant requested that the case be submitted to the Dispute
Resolution Chamber for a decision to be passed.
10.
As a result, B declared that it is of the opinion that it is not stated in article 1 of
Annex 5 of the Regulations for the Status and Transfer of Players whether the
percentage of the 5% shall be calculated on the net or gross amount. Therefore,
when a club omits to deduct the 5% of the transfer compensation for the relevant
player and consequently pays all the amount to the player’s former clubs, said new
club should be entitled to receive back its 5%. B also pointed out that no legal
interest can be added in case of solidarity contribution.
11.
Thereupon, B confirmed once again that it is willing to pay the amount due to the
Claimant, when C remits 5% of the total transfer fee.
12.
Finally, C repeated that the second article of the relevant transfer agreement
defines clearly that the transfer amount to be paid is to be understood as net price
and this means free from any expenses.
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 para. 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 4 January 2007
as a consequence the Chamber concluded that the revised Rules Governing
Procedures (edition 2005) 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. 3 para. 1 of the abovementioned Rules states that the Dispute Resolution Chamber shall examine its
jurisdiction in the light of articles 22 to 24 of the 2005 version of the Regulations
for the Status and Transfer of Players. In accordance with art. 24 para. 1 in
connection with art. 22 (d) of the aforementioned Regulations, the Dispute
Resolution Chamber shall adjudicate on disputes between two clubs belonging to
different Associations related to solidarity mechanism.
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 X club A in connection with the transfer of the
professional player D during the course of a contract.
3.
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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 2005 edition of the Regulations for the Status and Transfer of Players in
the modified version in accordance with the FIFA circular no. 995 dated 23
September 2005. Furthermore, it acknowledged that the transfer at the basis of
the present dispute had occurred after July 2005. Equally the Chamber took note
that the claim was lodged at FIFA on 4 January 2007. In view of the
aforementioned, the Chamber concluded that the edition 2005 of the FIFA
Regulations for the Status and Transfer of Players (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 members of
the Chamber started by acknowledging that, as established in the art. 21 in
connection with art. 1 of Annex 5 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.
6.
In the present case, the Chamber outlined that the entire period to be taken into
consideration with regard to the Claimant’s possible entitlement to solidarity
contribution would run from the sporting season 1996, the season of the player’s
12th birthday, until 9 January 2006.
7.
In continuation, the Chamber duly noted that B, the player’s new club, is in
principle willing to pay the solidarity contribution to the Claimant but omitted to
deduct 5% of the relevant transfer compensation relating to the solidarity
mechanism. Consequently, B had agreed to pay the applicable amount of
solidarity contribution, provided that the Z club C reimburses the relevant amount
to the Y club. In this regard, however, the Z club had rejected such reimbursement,
with reference to article 2 of the transfer agreement which it concluded with B on
occasion of the transfer in question.
8.
In this respect, the Chamber proceeded to an analysis of article 2 of the transfer
agreement between B and C. In doing so, the members of the Chamber
unanimously considered that the clause in question is rather vague and,
particularly, that the term “NET” is not sufficient to conclude that the 5%
solidarity contribution should not be deducted from the transfer compensation in
the present case, in particular in view of the unambiguous wording of the
Regulations which clearly provides for the deduction of the applicable amount of
solidarity contribution from any transfer compensation.
9.
The Chamber then referred to its well-established jurisprudence applied in similar
cases, in accordance with which the player’s new club is ordered to remit the
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relevant proportion(s) of the 5% solidarity contribution to the club(s) involved in
the player’s training in strict application of art. 1 of Annex 5 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. Consequently, the members of the Dispute Resolution Chamber
determined that B is to pay the applicable amount of solidarity contribution to the
Claimant, and shall in return be reimbursed by C.
10.
Turning its attention to the calculation of the solidarity contribution in the present
case, the Chamber referred to art. 1 of Annex 5 of the Regulations, which provides
for the respective parameters for the distribution of the solidarity contribution,
subject to the time the player was effectively trained by the clubs involved.
11.
In the present case, the Chamber outlined that according to Football Association
of X, the period of registration of the player with the club A was from 22 March
1995 until 9 January 2006. In this respect, the Chamber considered that the period
to be taken into consideration starts with the season 1996, which corresponds to
the season of the player’s 12th birthday and ends on 9 January 2006.
12.
Furthermore, the Chamber noted that according to the transfer contract remitted
to the file, the player D was transferred to B for the amount of USD 4,650,000.
13.
Therefore, the Chamber established that, in accordance with the parameters
provided for in art. 1 of Annex 5 of the Regulations, in the present case A is
entitled to receive 80% of the 5% solidarity contribution, corresponding to the
amount of USD 186,000.
14.
Based on all of the above, the Dispute Resolution Chamber decided that B must
pay to A the amount of USD 186,000 and that C must reimburse the same amount
to the Y club.
15.
Finally, taking into consideration the Claimant’s respective request and bearing in
mind that the relevant transfer compensation was to be paid in two instalments,
due to which a solidarity contribution payment of USD 96,000 fell due within 30
days of the expiry of the first contingent payment and a further USD 90,000 fell
due within 30 days of the expiry of the second contingent payment, the Dispute
Resolution Chamber decided that the Y club was to pay 5% interest per year on
the relevant solidarity contribution amounts each, starting on the day following
the due dates of the relevant solidarity contribution payments (i.e. 30 days after
the date of each contingent payment as per the transfer agreement; cf. art. 2
para. 1 of Annex 5 of the Regulations) and applicable until the effective date of
payment to the Claimant.
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III.
Decision of the Dispute Resolution Chamber
1.
The claim of A is partially accepted.
2.
B has to pay the amount of USD 186,000 to A within 30 days as from the date of
notification of this decision. Within the same time limit, B must pay 5% interest
per annum on the amount of USD 96,000 from 7 January 2007 as well as 5%
interest per annum on the amount of USD 90,000 from 31 August 2007 until the
date of the effective payment.
3.
If the aforementioned sum is not paid within the aforementioned deadline the
present matter shall be submitted to FIFA’s Disciplinary Committee for its
consideration and decision.
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 186,000 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 for its
consideration and decision.
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.
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).
Distribution of the Solidarity Contribution for the player D
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The full address and contact numbers of the CAS are the following:
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
Encl.
CAS directives
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