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
Gerardo Movilla (Spain), member
Essa M. Saleh Al-Housani (U.A.E.), member
John Didulica (Australia), member
Mohamed Mecherara (Algeria), member
on a matter between the club
A, xxxxx
and the club
B, xxxx
and the club
C, xxxxx
as Intervening party
regarding the solidarity contribution related to the
transfer of the player X.
I.
Facts of the case
1.
According to the Football Association of xxxx the player X, born on 24 March 1977,
was registered with A (hereafter: A) as from 14 March 1997 until 24 February 1999
and as from 2 August 1999 until 1 August 2000.
2.
According to the relevant transfer agreement remitted to FIFA the player was
loaned on 28 August 2005 for an amount of USD 100,000 from C to B. By the end
of the loan period, i.e. on 31 December 2005 the player was transferred definitely
to the aforementioned for the amount of USD 500,000.
3.
On 2 January 2007, A contacted FIFA asking for its proportion of the solidarity
contribution, in particular, it claimed 29,51% of 5% of the amount paid by B to C.
4.
B informed FIFA that it paid the entire amount in connection with the loan and
the definitive transfer of the player concerned to C. Therefore, in case it should
pay any solidarity contribution in connection with the player concerned, C should
reimburse the relevant amount of solidarity mechanism.
5.
C informed FIFA that it contractually agreed with B that the amounts of USD
100,000 and USD 500,000 were net payments without any deductions. Therefore, C
deemed that it neither has to reimburse any amount at all to B nor to pay any
amount to A. C argued that it was agreed inter partes that it would receive the
full amount of USD 100,000, respectively USD 500,000 and not less and that it is
the responsibility of B to comply with the FIFA Regulations.
6.
FIFA informed the clubs concerned by the present procedure of the wellestablished 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.
The clubs involved did not consider the well-established jurisprudence of the
Dispute Resolution Chamber and thus a decision had been requested.
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 2 January 2007
as a consequence the Chamber concluded that the revised Rules Governing
Procedures (edition 2005) are applicable on the matter at hand.
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2.
With regard to the competence of the Chamber, art. 3 par. 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 current version of the
Regulations for the Status and Transfer of Players (edition 2005). In accordance
with art. 1 par. 1 of the aforementioned Regulations, which describes the scope
and the field of application of the relevant Regulations, in connection with articles
24 par. 1 and 22 (d) of the said Regulations, the Dispute Resolution Chamber shall
adjudicate on disputes between two clubs in connection with an international
transfer of a professional player related to solidarity mechanism.
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 in connection with the international transfer of the professional X.
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 professional had been registered for
his new club in August 2005. Equally the Chamber took note that the claim was
lodged at FIFA in January 2007. In view of the aforementioned, the Chamber
concluded that the current FIFA Regulations for the Status and Transfer of Players
(edition 2005, hereafter: the Regulations) are applicable to 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 A is requesting 29,51% of 5% of the
amount paid by B to C in connection with the international transfer of the
professional X.
6.
Moreover, the Chamber duly noted that according to the relevant transfer
agreement remitted to FIFA the player was loaned on 28 August 2005 for an
amount of USD 100,000 from C to B and that by the end of the loan period, i.e. on
31 December 2005 the player was transferred definitely to the aforementioned
club for the amount of USD 500,000.
7.
In continuation, the members of the Chamber emphasised that, as established in
the art. 10 par. 1 and art. 21 of the Regulations in connection with Annex 5 of the
Regulations, 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 to be 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
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registered with the relevant clubs between the sporting seasons of his 12th and 23rd
birthday.
8.
In this respect, the Chamber took due note that the Football Association of xxxx
confirmed that the player X, born on 24 March 1977, was registered with A as
from 14 March 1997 until 24 February 1999 and as from 2 August 1999 until 1
August 2000.
9.
In continuation, the Chamber duly noted that B (the player’s new club) asserts
having paid the entire amount of USD 100,000 as well as USD 500,000 agree upon
as transfer compensation, to C (the player’s previous club). In other words, B
omitted to deduct 5% of the relevant transfer compensation relating to the
solidarity mechanism.
10.
In this respect, the Chamber acknowledged that B requests that in case it should
pay any solidarity contribution C should reimburse the relevant amount of
solidarity contribution.
11.
Furthermore, the Chamber observed that C argued that it was agreed inter partes
that it would receive the full amount of USD 100,000, respectively USD 500,000
and not less and that it is the responsibility of B to comply with the FIFA
Regulations.
12.
In this respect, the Chamber noted that according to the relevant transfer
agreement C and B agreed on a loan compensation amounting to USD 100,000
and on a definitive transfer compensation amounting to USD 500,000 of the
“federative rights” to the player concerned.
13.
First and foremost, the Chamber was eager to emphasise that since 1 September
2001, the date of the entry into force of the completely reviewed version of the
FIFA Regulations for the Status and Transfer of Players (edition 2001) the concept
of the so-called “federative rights” to players does not exist anymore. It was
replaced by the principle of maintenance of contractual stability between the
contracting parties (cf. Chapter VIII, art. 21 and following of the 2001 Regulations
corresponding to Chapter IV, art. 13 of the Regulations). In particular, the
Chamber emphasised that a player and a club may only be contractually bound
due to a valid employment contract.
14.
Subsequently, the Chamber referred to its well-established jurisprudence applied
in similar cases, in accordance with which the player’s new club is ordered to remit
the relevant proportion(s) of the 5% solidarity contribution to the club(s) involved
in the player’s training in strict application of art. 1 and 2 of the Annexe 5 to 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.
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15.
As a result and in consideration of the above-stated jurisprudence, the Chamber
decided to reject the allegations of B and C.
16.
In view of the above, as well as considering the points II. 7 and 8 above, the
Chamber decided that A is entitled to receive the claimed proportion of 29,51% of
5% of the loan compensation as well as of the transfer compensation paid for the
player in question as solidarity contribution from B.
17.
Based on all of the above, the Dispute Resolution Chamber decided that B must
pay to A the amount of USD 1,475,50 (in connection with the loan) and the
amount of USD 7,377,50 (in connection with the definitive transfer), i.e. the total
amount of USD 8,853 and that C must reimburse the amount of USD 8,853 to B.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of A is accepted.
2.
B has to pay the amount of USD 8,853 to A within 30 days as from the date of
notification of this decision.
3.
If the aforementioned sum is not paid within the aforementioned deadline an
interest rate of 5% per year will apply as of expiry of the fixed time limit and the
present matter shall be submitted to FIFA’s Disciplinary Committee, so that the
necessary disciplinary sanctions may be imposed.
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 8,853 to B within 30 days as from the
date 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, so that the
necessary disciplinary sanctions may be imposed.
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
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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
CH-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
Deputy General Secretary
Encl.
CAS directives
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