Solidarity Contribution
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 13 December 2010,
by Philippe Diallo (France), DRC judge,
on a matter between the club
S,
as Claimant
and the club
M,
as Respondent
regarding a solidarity contribution dispute
related to the transfer of the player R”
I.
Facts of the case
1.
The Football Federation B (FFB) confirmed that the player R (hereinafter: the
player), born on 25 January 1984, was registered with its affiliated club S
(hereinafter also referred to as the Claimant), from 1 January 1996 until 31 March
2001 as an amateur and from 1 April 2001 until 25 August 2005 as a professional.
The season in the country B follows the calendar year.
2.
The player was registered with the club M (hereinafter also referred to as the
Respondent) on 1 September 2008.
3.
On 15 April 2009, S contacted FIFA claiming its allegedly outstanding proportion
of the solidarity contribution in connection with the transfer of the player from
the club, A, to the club M allegedly against the amount of EUR 47,200,000. The
Claimant stated that it allegedly was entitled to 76.50% of the 5% solidarity
contribution and that it had already received the amount of EUR 1,332,421.05
from the club M, which allegedly corresponds to 56.50% of the 5% solidarity
contribution.
4.
Therefore, club S requested the remaining amount of EUR 472,489.71, which
allegedly corresponds to 20% of the 5% solidarity contribution, and an interest
rate of 5% p.a. since the day the solidarity payment was due.
5.
The club M never answered to the claim of club S. However, on 9 November 2010,
after the investigation into the matter had been closed, The Football Federation E
stated that according to the club M, the player was allegedly registered as a futsal
player with with the club S during a certain period (no evidence provided). The
Football Federation E did not file any declaration, by means of which the club C
would request The Football Federation E to act on its behalf in the present matter.
6.
On 10 November 2010, S contested the allegation that the player was registered
with it as a futsal player, referring to the player passport issued by the FFB, which
does not mention any registration of the player as a futsal player.
II.
Considerations of the DRC judge
1.
First of all, the Dispute Resolution Chamber judge analysed whether he was
competent to deal with the case at hand. In this respect, the judge first referred to
art. 21 par. 1 and 2 of the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (edition 2008). The present
matter was submitted to FIFA on 15 April 2009, thus after aforementioned Rules
Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber entered into force on 1 July 2008. Therefore, the judge
concluded that the 2008 edition of the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the
Procedural Rules) is applicable to the matter at hand.
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2.
Subsequently, the judge referred to art. 3 par. 2 of the Procedural Rules, which
states that the jurisdiction of the DRC judge is set out in art. 24 par. 2 of the
Regulations on the Status and Transfer of Players (edition 2010). In accordance
with art. 24 par. 2 iii) of the aforementioned Regulations, the Dispute Resolution
Chamber judge shall adjudicate on disputes relating to solidarity contributions
without complex factual or legal issues.
3.
Furthermore, the DRC judge analysed which edition of the Regulations on the
Status and Transfer of Players should be applicable as to the substance of the
matter. In this respect, the judge referred, on the one hand, to art. 26 par. 1 and 2
in connection with art. 29 of the Regulations on the Status and Transfer of Players
(edition 2010) and, on the other hand, to the fact that the present claim was
lodged on 15 April 2009 and that the player was registered for the Respondent on
1 September 2008. In view of the aforementioned, the judge then referred to
art. 26 par. 1 and 2 in connection with art. 29 par. 2 of the Regulations on the
Status and Transfer of Players (edition 2009) and concluded that the 2008 edition
of the Regulations on the Status and Transfer of Players (hereinafter: the
Regulations) is applicable to the matter at hand as to the substance.
4.
The competence of the DRC judge and the applicable regulations having been
established, the judge entered into the substance of the matter. The judge started
by acknowledging the facts of the case as well as the documentation contained in
the file.
5.
In continuation, the DRC judge duly noted that the Claimant had originally
requested solidarity contribution for the training and education of the player
incurred between 1 January 1996 and 25 August 2005, i.e. the seasons
comprehended between the player’s 12th and 21st birthday. The judge took due
note that the Claimant states having received the amount of EUR 1,332,421.05
from the Respondent, and therefore, presently claims the allegedly remaining
proportion of solidarity contribution in the amount of EUR 472,489.71, as well as
the payment of 5% interest per year since the date the payment should have been
made.
6.
Moreover, the judge duly noted that, based on the information provided by the
Claimant, the player was transferred from the club A to the Respondent for the
amount of EUR 47,200,000.
7.
In continuation, the DRC judge emphasised that, as established in art. 21 in
connection with Annexe 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 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
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the number of years the player has been registered with the relevant club(s)
between the sporting seasons of his 12th and 23rd birthday.
8.
In this respect, the judge took due note that the Football Federation B confirmed
that the player R, born on 25 January 1984, was registered with the Claimant from
1 January 1996 until 25 August 2005.
9.
With regard to the alleged registration of the player as a futsal player with the
Claimant, the DRC judge first referred to art. 12 par. 3 of the Procedural Rules,
which states that any party claiming a right on the basis of an alleged fact shall
carry the burden of proof. In continuation, the judge took into consideration that
the said allegation was contested by the Claimant. Considering the
aforementioned, and irrespectively of the fact that the Respondent did not
empower The Football Federation E to act on its behalf, the DRC judge concluded
that the Respondent carried the burden of proof with regard to the said
allegation and that it did not prove the fact that the player was registered as a
futsal player with the Claimant.
10.
In view of the above, and considering the points II. 5 and 8 above, as well as the
fact that the Respondent did not contest the Claimant’s claim and had apparently
even already paid a substantial share of the solidarity contribution, the judge
decided that the Claimant is entitled to receive a proportion of the relevant
transfer compensation as solidarity contribution, as well as 5% interest per year on
that amount, from the Respondent.
11.
Turning its attention to the calculation of the due proportion of solidarity
contribution, the judge referred to art. 1 of Annexe 5 of the Regulations, which
stipulates that the solidarity contribution reflects the number of years the player
was registered with the relevant club between the seasons of his 12th and 23rd
birthdays, calculated pro rata if less than one year, in accordance with the table of
aforementioned provision.
12.
In this respect, the judge concluded that the effective period of training to be
considered in the matter at stake corresponds to the information contained in the
player passport received from the association of the Claimant, i.e. the Football
Federation B, which displays that the player was registered with the Claimant for
the period as from 1 January 1996 until 25 August 2005, i.e. for 9 years in the
seasons from 1996 until 2004 in country B and eight months of the season 2005 in
country B, and that the aforementioned seasons correspond to the seasons of the
player’s 12th to 21st birthdays.
13.
Therefore, considering that the Claimant had demonstrated its entitlement to
solidarity contribution, and that its statement, that after a partial payment by the
Respondent the amount of EUR 472,489 still remained outstanding, was not
contested by the latter, the judge determined that this was the amount to be
awarded to the Claimant.
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14.
Equally, the judge emphasized that according to art. 2 par. 1 of Annexe 5 of the
Regulations, the deadline for payment of training compensation is 30 days
following the registration of the player with the new association.
15.
Consequently and taking into account all the above-mentioned elements, the
Dispute Resolution Chamber judge decided that the Claimant is entitled to receive
solidarity contribution from the Respondent in an amount of EUR 472,489, with
5% interest per year on the said amount as from 2 October 2008 until the
effective date of payment.
16.
In continuation, the judge referred to art. 18 par. 1 of the Procedural Rules,
according to which in the proceedings before the Dispute Resolution Chamber
relating to disputes regarding solidarity mechanism costs in the maximum amount
of CHF 25,000 are levied. The costs are to be borne in consideration of the parties’
degree of success in the proceedings.
17.
In this respect, the judge reiterated that the claim of the Claimant is accepted.
Therefore, the Respondent has to bear the costs of the current proceedings in
front of FIFA.
18.
According to Annexe A of the Procedural Rules, the costs of the proceedings are
to be levied on the basis of the amount in dispute.
19.
The amount in dispute to be taken into consideration in the present proceedings
amounts to EUR 472,489 related to the claim of the Claimant. Therefore, the judge
concluded that the maximum amount of costs of the proceedings corresponds to
CHF 25,000 (cf. table in Annexe A).
20.
Considering the above-mentioned, the judge determined the final amount of
costs of the current proceedings to the amount of CHF 25,000.
21.
In this respect, the judge took into account that the Claimant had paid the
advance of costs in the amount of CHF 5,000 in accordance with art. 17 of the
Procedural Rules.
22.
In view of all of the above, the judge concluded that the amount of CHF 25,000
has to be paid by the Respondent to cover the costs of the present proceedings.
Thereof the amount of CHF 20,000 has to be paid by the Respondent to FIFA and
the amount of CHF 5,000 to the Claimant.
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III.
Decision of the DRC judge
1.
The claim of the Claimant, S, is accepted.
2.
The Respondent, M, has to pay to the Claimant, S, the amount of EUR 472,489 as
well as 5% interest per year on the said amount as from 2 October 2008 until the
date of effective payment, within 30 days as from the date of notification of this
decision.
3.
If the aforementioned sum is not paid within the aforementioned deadline, the
present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee
for consideration and a formal decision.
4.
The final amount of costs of the proceedings in the amount of CHF 25,000 are to
be paid by the Respondent, M, within 30 days of notification of the present
decision as follows:
4.1
The amount of CHF 20,000 to FIFA to the following bank account with
reference to case no. [xxx XX-XXXXX]:
UBS Zurich
Account number 366.677.01U (FIFA Players’ Status)
Clearing number 230
IBAN: CH27 0023 0230 3666 7701U
SWIFT: UBSWCHZH80A
4.2
5.
The amount of CHF 5,000 to the Claimant, S.
The Claimant, S, is directed to inform the Respondent, M, 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.
*****
Note relating to the motivated decision (legal remedy):
According to art. 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).
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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
Encl. CAS directives
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