Solidarity Contribution
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 5 December 2008,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Joaquim Evangelista (Portugal), member
Gerardo Movilla (Spain), member
Mario Gallavotti (Italy), member
Caio Cesar Vieira Rocha (Brazil), member
on the claim presented by the club
A,
as Claimant
against the club
FC A
as Respondent
regarding a dispute for solidarity contribution in connection with
the transfer of the player R
I.
Facts of the case
1.
The Football Federation of P confirmed that the player R, born on 17 December
1980, was registered with the P club A, the Claimant, as from 31 July 2001 (season
of his 21st birthday) until 6 January 2003 (season of his 22nd birthday).
2.
The football season in P lasts from July to July of the following year.
3.
The player was registered with the G club, FC A, the Respondent, on 29 August
2005.
4.
On 18 January 2007, the Claimant, contacted FIFA affirming that the player had
been transferred in Summer 2005 from the P club, B, to the Respondent. As a
result, the Claimant requested its proportion of the solidarity contribution for
three seasons, i.e. the seasons 2001/2002 until 2003/2004, plus 5% default interest.
5.
On 2 November 2007, the Respondent informed FIFA that by the time it signed an
employment contract with the player, in July 2005, the player’s employment
contract with B, had expired and thus it had not paid any transfer compensation at
all to B.
6.
Moreover, the Respondent emphasized that it had already been contacted several
times by the Claimant. In this regard, it argued that it had already explained to the
Claimant that no transfer compensation had been paid for the player’s transfer,
and therefore also no solidarity contribution could be due.
7.
On 25 November 2007, the Claimant affirmed that the player had been transferred
for an amount of EUR 1,000,000 and thus it claims the amount of EUR 15,000 as
solidarity contribution plus interest.
8.
On 23 January 2008, the Respondent again emphasized that it had not paid any
transfer compensation at all to B, as arbitrarily affirmed by the Claimant.
Moreover, the Respondent underlined that if the Claimant affirmed that a transfer
compensation amounting to EUR 1,000,000 had been paid to the P club, B, which
is contested, it should provide the relevant evidence to proof its affirmations.
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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 case at hand. In this respect, it took note that the present matter
was submitted to FIFA on 18 January 2007. Consequently, the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(edition 2005, hereinafter: Procedural Rules) are applicable to the matter at hand
(cf. 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
combination with art. 22 lit. (e) of the Regulations on the Status and Transfer of
Players (edition 2008) the Dispute Resolution Chamber is competent to decide on
the present litigation concerning the distribution of the solidarity contribution
claimed by the Claimant in connection with the transfer of the professional R
between two clubs belonging to different associations.
3.
Furthermore, and taking into consideration that the player was registered with his
new club in August 2005, 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), and considering that the present claim was lodged on 18
January 2007, the previous version of the regulations (edition 2005; hereinafter:
the Regulations) are 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. The members
of the Chamber started by acknowledging that the parties have contradictory
positions as to whether the Respondent had paid any transfer compensation at all
to the player’s former club, the P club B, for the transfer of the player.
5.
In particularly, the Chamber took due note that, on the one hand, the Claimant
affirmed that the player was transferred from the P club B to the Respondent for
the alleged amount of EUR 1,000,000. On the other hand, the Chamber took due
note that the Respondent vehemently contested the affirmation of the Claimant
and affirmed that by the time it signed an employment contract with the player,
in July 2005, the player’s employment contract with B, had expired and thus it had
not paid any transfer compensation at all to B.
6.
In continuation, the Chamber deemed it important to emphasized that, as a
general rule, as established in the art. 21 of the Regulations in connection with
Annex 5 of the Regulations, if a professional moves during the course of a
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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 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 club(s) between the sporting seasons
of his 12th and 23rd birthdays.
7.
Thus, considering the above the Chamber concluded that one of the essential
prerequisites in order to establish as to whether a club involved in the training
and education of a player is entitled to receive any solidarity contribution is that
at least a compensation, not including training compensation, had been paid for
the transfer of a player to his former club, otherwise the calculation becomes
unfeasible.
8.
In this context, the Chamber considered that the Claimant did not provide any
documentary evidence at all proving that any transfer compensation had been
paid to B, but merely stated an amount. In particular, the Chamber acknowledged
that the Claimant did not provide any documentary evidence although the
Respondent vehemently contested that any compensation at all had been paid for
the transfer of player since he was no longer contractually bound to his former
club.
9.
Then, the Chamber recalled that according to the legal principle of the burden
of proof, any party claiming a right on the basis of an alleged fact shall carry the
burden of proof (cf. art. 12 par. 3 of the Procedural Rules).
10.
In view of the above, the Chamber unanimously concluded that any club claiming
its right to receive its alleged proportion of the solidarity contribution, from a club
that contests that any transfer compensation had been paid, shall carry the
burden of proof that such a transfer compensation had indeed been paid.
11.
As a result, and based on the documents at its disposal the Chamber decided to
reject the claim of the Claimant against the Respondent for solidarity contribution
in connection with the transfer of the player R.
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III.
Decision of the Dispute Resolution Chamber
The claim of the Claimant, A, is rejected.
*****
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).
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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