Official Documents
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 26 November 2009,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Carlos Soto (Chile), member
Michele Colucci (Italy), member
Ivan Gazidis (England), member
Damir Vrbanovic (Croatia), member
on a matter between the club
A,
and the club
H,
and the club
F,
as Intervening party
regarding solidarity contribution related to the
transfer of the player E
I.
Facts of the case
1.
The player, E (hereinafter: the player), was born on 7 November 1980.
2.
According to the G Football Association, the player was registered as a
professional for the G club, A, from 12 February 1994 until 9 March 2000.
3.
The relevant sporting seasons in G lasted from January until December of the
relevant year.
4.
On 23 January 2007, the player was transferred, on a loan basis, from the U club, F
(hereinafter: the Intervening party), to the S club, H for a loan compensation of
USD 200,000.
5.
According to an information provided by the S Football Association, the player
was registered for the S club, H, on 31 January 2007.
6.
On 1 July 2007, the player was definitively transferred from the Intervening party
to H for a transfer compensation of USD 1,500,000.
7.
On 12 September 2007, A contacted FIFA claiming its proportion of the solidarity
contribution in connection with the loan and the definitive transfer of the player
from the Intervening party to the S club, H.
8.
In this respect, A held that, on 23 January 2007, the player had been transferred
on a loan basis from the Intervening party to H for a loan fee of USD 200,000. It
further stated that the player had been definitively transferred from the
Intervening party to H on 1 July 2007 for a transfer fee of USD 1,500,000. On
account of the foregoing, A requested the payment of 3% of the total loan and
transfer compensation, respectively, as solidarity contribution, allegedly
amounting to a total amount of USD 51,000, plus 5% of interest, composed as
follows: USD 45,000 being the solidarity contribution due in relation to the
player’s definitive transfer and USD 6,000 being the solidarity contribution due in
relation to the player’s loan.
9.
On 17 October 2007, H confirmed to FIFA that the player had been definitively
transferred from the Intervening party to H for a transfer compensation of USD
1,500,000. H added that 100% of the transfer compensation had been paid to the
Intervening party. Furthermore, H pointed out that it had lodged a complaint
against the Intervening party before the FIFA Players’ Status Committee, claiming
the reimbursement of an amount of USD 75,000 allegedly corresponding to 5% of
the transfer compensation paid for the transfer of the player.
10.
On 8 October 2008, FIFA informed all the clubs involved of its jurisprudence,
according to which the player’s new club is ordered to remit the relevant
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proportion(s) of the 5% solidarity contribution to the club(s) involved in the
player’s training in strict application of the relevant provisions of the Regulations
on the Status and Transfer of Players. 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. Therefore, FIFA invited H to distribute the
relevant proportion of the 5% solidarity contribution of the respective
aforementioned transfer compensations to A, and the Intervening party to
reimburse H the relevant proportion of the 5% of the said transfer compensations
agreed upon.
11.
On 29 October 2008, the Intervening party informed FIFA that H had the
responsibility to distribute the relevant proportions of solidarity contribution to
the relevant training clubs.
12.
On the same day, H maintained being willing to distribute the solidarity
contribution to A, once it has been reimbursed by the Intervening party.
13.
On 25 November 2008, A adhered to its position and claimed the payment of its
proportion of solidarity contribution in relation to the aforementioned transfer
fees from H.
14.
On 26 November 2008, H adhered to its position and pointed out that art. 1.3 of
the transfer agreement stipulates that “The Transferring Club confirms that the
amount indicated in Point 1.2 above is final and the Accepting Club [H] does not
have to pay any other additional to the Transferring Club [the Intervening party]
and to any other clubs or agents.”
15.
On 11 December 2008, the Intervening party explained that it was willing to settle
the matter amicably. However, FIFA was not informed of a positive outcome of
any negotiations.
16.
On 12 December 2008, H provided FIFA with its final position as well as with the
relevant loan agreement, which confirmed that the loan amounted to USD
200,000. Furthermore, it pointed out that clause 1.1 in fine of the said loan
agreement provided that “The Transferring Club [the Intervening party] confirms
that the Accepting Club [H] does not have to pay any amounts, except provided in
this clause, to the Transferring Club [the Intervening party] and any amounts to
any other Clubs, agents or any third parties for the loan of the player.”
*****
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II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber analysed whether it was competent to
deal with the present matter. In this respect, it noted that the original claim at the
basis of the present case was submitted to FIFA on 12 September 2007.
Consequently, the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (edition 2005; hereinafter: the
Procedural Rules) are applicable to the matter at hand (cf. art. 21 par. 2 and 3 of
the 2008 edition of the Procedural Rules in combination with art. 18 par. 2 and 3
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
connection with art. 22 lit. d) of the Regulations on the Status and Transfer of
Players (edition 2008), the Dispute Resolution Chamber shall adjudicate on
disputes relating to the solidarity mechanism between clubs belonging to
different associations. As a consequence, the Dispute Resolution Chamber
confirmed that it was the competent body to decide on the present litigation
involving a G, a S and a U club and concerning the distribution of the solidarity
contribution in connection with the international temporary and definitive
transfer of the professional player E.
3.
Furthermore, and taking into consideration that the player was transferred first
on a loan basis on or about 23 January 2007 and then, later, on a definitive basis
on or about 1 July 2007 to his new club, H, and that the present claim was lodged
with FIFA on 12 September 2007, the Chamber analysed which regulations should
be applicable as to the substance of the matter. In this respect, it confirmed that in
accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer
of Players (edition 2008) the previous version of the regulations, the FIFA
Regulations for the Status and Transfer of Players (edition 2005; hereinafter: the
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 Chamber entered into the substance of the matter and started by
acknowledging the above-mentioned facts as well as the documentation
submitted by the parties.
5.
To begin with, the Chamber sought to underline that it remained undisputed that
H had concluded a loan and a transfer agreement with the Intervening party for
the temporary and the definitive transfer of the player and had paid the relevant
amounts of loan and transfer compensation. As a matter of fact, H itself had
stated in its submission that it was willing to pay the relevant amount of solidarity
contribution to A, once it has been reimbursed by the Intervening party.
6.
Furthermore, the members of the Chamber acknowledged that according to the
loan agreement provided by H, the player had been transferred on a loan basis
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from the Intervening party to H for a total amount of USD 200,000. Equally, the
Chamber acknowledged that the transfer agreement stipulated that the player
had been definitively transferred for a total transfer compensation of EUR
1,500,000.
7.
The Chamber further noted that H had argued that it had paid the entire amount
of transfer compensation to the Intervening party, without retaining the
percentage due as solidarity contribution. In other words, H had omitted to
deduct 5% of the relevant transfer compensation relating to the solidarity
mechanism.
8.
In turn, the Dispute Resolution Chamber underlined that the Intervening party
had, in response to the request for reimbursement made by H, sought to argue
that H was responsible to distribute the relevant proportion of solidarity
contribution to the training clubs.
9.
In continuation, the members of the Chamber went on to recall that according to
art. 21 of the Regulations in connection with Annex 5 of the Regulations, if a
professional player 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 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
registered with the relevant clubs between the sporting seasons of his 12th and
23rd birthday.
10.
In view of the above-mentioned provisions, the Chamber underlined that, in the
matter at hand, a proportion of 5% of the compensation paid by the player’s new
club, in casu H, to his former club, in casu the Intervening party, ought to have
been deducted (cf. art. 1 of Annex 5 of the Regulations) from the total amount of
both the loan and the transfer compensation paid by the former in order to be
distributed as solidarity contribution to the club(s) involved in the training and
education of the player concerned.
11.
In addition to the above-mentioned considerations, the Chamber underlined that
in view of the clear wording of the aforementioned applicable provisions, it was
evidently not left at the discretion of the parties to change such an explicit rule.
Therefore, the parties to a transfer agreement have to abide by the Regulations in
terms of the party responsible for the distribution of the solidarity contribution to
the clubs having trained and educated the player concerned.
12.
The Chamber also held that this conclusion fully reflected 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
the Regulations. At the same time, the player’s former club is ordered to
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reimburse the same proportion(s) of the 5% of the compensation that it received
from the player’s new club.
13.
In view of all the above and in light of the aforementioned well-established
jurisprudence, the members of the Dispute Resolution Chamber concluded that it
was the responsibility of the new club, i.e. H, to pay the relevant proportion of
solidarity contribution to A, which was involved in the player’s training.
Furthermore, and bearing in mind that the relevant proportion of 5% solidarity
contribution has to be deducted from the amount payable to the player’s former
club, the Intervening party would have to refund the same proportion to H.
14.
After having confirmed the above-mentioned obligations incumbent on the
parties, the Chamber went on to establish the proper calculation of the relevant
proportion of solidarity contribution due to A.
15.
To that end, the Chamber referred to art. 1 of the Annex 5 of the Regulations
which provides for the figures for the distribution of solidarity contribution, in
accordance with the period of time the player was effectively trained by a specific
club and taking into consideration the age of the player at the time he was being
trained and educated by the club(s) concerned.
16.
In this respect, the Chamber drew its attention to the fact that the G Football
Association confirmed that the player had been registered for < as from 12
February 1994 until 9 March 2000. Therefore, the Chamber concluded that these
were the relevant dates to be taken into consideration for the calculation of the
amount of solidarity contribution.
17.
In light of the above, the Chamber decided that the period of training and
education to be taken into account corresponds to a total of six years and one
month. Consequently, the Chamber established that, in accordance with the
breakdown provided for in art. 1 of Annex 5 of the Regulations, A is basically
entitled to receive 51,26% of 5% of both the loan and the transfer compensation
paid by H to the Intervening party in relation to the transfer of the player.
18.
Based on all of the above, the members of the Dispute Resolution Chamber
unanimously concluded that H must pay to A the total amount of USD 43,571, plus
5% of interest, corresponding to 51,26% of the 5% of the loan compensation of
USD 200,000 and 51,26% of the 5% of the transfer compensation of USD
1,500,000. As a consequence, the Chamber concluded that the claim of A is
partially accepted and that the Intervening party had to reimburse the amount of
USD 43,571 to H.
Decision of the Dispute Resolution Chamber
1.
The claim of A is partially accepted.
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2.
H has to pay to A the amount of USD 43,571 within 30 days as from the date of
notification of this decision.
3.
Within the same time limit, H has to pay default interest of 5% p.a. on the
following partial amounts until the effective date of payment to A as follows:
-
on EUR 5,126 as from 3 March 2007;
on EUR 38,445 as from 1 August 2007.
4.
Any further claims lodged by A are rejected.
5.
If the aforementioned sum is not paid within the aforementioned deadline, the
present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee
so that the necessary disciplinary sanctions may be imposed.
6.
A is directed to inform H 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.
7.
F has to reimburse the amount of USD 43,571 to H, within 30 days as from the
date of notification of this decision.
8.
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, upon request, to FIFA’s Disciplinary Committee
so that the necessary disciplinary sanctions may be imposed.
9.
H is directed to inform F 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 article 63 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
Deputy Secretary General
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