Solidarity Contribution
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 10 December 2009,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Theo van Seggelen (Netherlands), member
Jon Newman (USA), member
Philippe Diallo (France), member
Theodoros Giannikos (Greece), member
on a matter between the club
D,
as Claimant
and the club
R,
as Respondent
regarding a dispute for solidarity contribution in connection with
the transfer of the player P
I.
Facts of the case
1.
The player, P (hereinafter: the player), was born on 11 February 1976.
2.
In accordance with the player passport issued by the Football Federation P
(hereinafter: FFP), the player was registered for the club, D (hereinafter: the
Claimant), from 15 October 1987 until 24 September 1990. Equally, according to
the FPF, the relevant sporting season in X runs from 1 August until 31 July of the
following year.
3.
On 9 July 2007, the player was transferred from the club, S (hereinafter: S), to the
club, R (hereinafter: the Respondent), for the amount of EUR 2,000,000, due as
follows:
-
EUR 500,000 at the signature of the transfer agreement;
EUR 250,000 on 10 October 2007;
EUR 250,000 on 10 January 2008;
EUR 250,000 on 10 April 2008;
EUR 250,000 on 10 July 2008;
EUR 250,000 on 10 October 2008;
EUR 250,000 on 10 January 2009.
4.
According to information provided by the Football Federation E (hereinafter: FFE),
the player was registered for the Respondent on 8 August 2007.
5.
On 3 March 2008, the Claimant lodged a claim before FIFA requesting its
proportion of the solidarity contribution in connection with the transfer of the
player from the club, S, to the Respondent.
6.
Pertaining to the foregoing, the Claimant asserted that the player had been
transferred from S to the Respondent for a transfer fee of EUR 4,000,000 and
requested the payment of 15% of the transfer compensation as solidarity
contribution, allegedly amounting to EUR 30,000, plus 5% of interest per year as
from the moment the said amount became due. The Claimant also requested the
payment by the Respondent of the legal expenses incurred by the Claimant in this
matter.
7.
The Claimant justifies its request by asserting that the player was registered for it
for a period equivalent to three complete sporting seasons corresponding to the
seasons of the player’s 12th, 13th and 14th birthdays.
8.
In its response to the claim, the Respondent held that the player had been
transferred from S to the Respondent for a transfer compensation of EUR
2,000,000, providing a copy of the transfer agreement. Therefore, according to the
2
Respondent, the Claimant would be entitled to receive EUR 15,000. Finally, the
Respondent alleged to have offered EUR 15,000 to the Claimant on 9 June 2008
through promissory notes due on July, August and September 2008.
9.
In its replica, the Claimant stated that, even though it had accepted the amount
offered by the Respondent, it remained outstanding to that date. As a
consequence, the Claimant insisted on the payment of the solidarity contribution
amounting to “EUR 15,000 plus interests at the rate of 16% per year since August
2007, in the total amount of 16,000 to date”.
10.
Later on, the Claimant acknowledged receipt and payment of the cheque issued
by the Respondent for the amount of EUR 15,000. Nevertheless, it maintained its
claim regarding the interests. In particular, the Claimant held that “the extremely
late payment of the relevant due amount clearly demonstrates a total lack of
respect … which cannot be tolerated and less over accepted” and also that “in
light of the above, 7,5% interest in the amount of EUR 1,125 corresponding to a
rate of 5% p.a., in accordance with the well-established jurisprudence of the
Dispute Resolution Chamber, are due and outstanding to date”.
11.
The Respondent presented its position stating that it rejects the obligation to pay
interests, considering that the payment of the solidarity contribution was delayed
by the acceptance of the Claimant regarding the amount.
12.
On account of the above, FIFA’s administration informed the Claimant regarding
the jurisprudence of the Dispute Resolution Chamber which establishes that in
case there was an amicable settlement of the dispute regarding the distribution of
the solidarity contribution, the claim for default interest would appear to be
unfounded.
13.
Notwithstanding the above, the Claimant adhered to its position and insisted on a
decision passed by the Dispute Resolution Chamber, pertaining to the claimed
interests. The Claimant alleged that the Respondent took advantage of the
elapsed time while reaching an amicable settlement. Also, it held that the
Respondent had the responsibility to distribute the solidarity contribution and,
therefore, the amount was outstanding since August 2007.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber analysed whether it was competent to
deal with the matter at hand. In this respect, the Chamber first referred to art. 21
par. 2 and 3 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 3 March 2008, thus before the aforementioned
3
Rules entered into force on 1 July 2008. Therefore, the Dispute Resolution
Chamber referred to art. 18 par. 2 and 3 of the Rules Governing the Procedures of
the Players’ Status Committee and the Dispute Resolution Chamber (DRC)
(hereinafter: Procedural Rules; edition 2005) and concluded that the 2005 edition
of the Procedural Rules is applicable to the matter at hand.
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the
Procedural Rules, which states that the Dispute Resolution Chamber shall examine
its jurisdiction in the light of art. 22 to 24 of the Regulations on the Status and
Transfer of Players (edition 2009). In accordance with art. 24 par. 1 in connection
with art. 22 lit. d) of the aforementioned Regulations, the Dispute Resolution
Chamber shall adjudicate on disputes relating to the solidarity mechanism
between clubs belonging to different associations.
3.
As a consequence, the Dispute Resolution Chamber confirmed that it was the
competent body to decide on the present litigation concerning the distribution of
the solidarity contribution, respectively the potential payment of default interest
related to such contribution, claimed by the Claimant in connection with the
international transfer of the professional player P during the course of a contract.
4.
Furthermore, the Chamber 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 Chamber referred, on the one hand, to art. 26 par. 1
and 2 of the Regulations on the Status and Transfer of Players (edition 2009) and,
on the other hand, to the fact that the present claim was lodged on 3 March 2008
and that the player was transferred to the Respondent on 8 August 2007. In view
of the aforementioned, the Dispute Resolution Chamber referred to the 2008
edition of the Regulations on the Status and Transfer of Players and, in particular,
to art. 26 par. 1 and 2 of the said Regulations. Consequently, the Chamber
concluded that the 2005 edition of the Regulations for the Status and Transfer of
Players (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
5.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter and carefully
considered and analysed the above-mentioned facts as well as the documentation
submitted by the parties during the course of the investigation.
6.
Most notably, the Dispute Resolution Chamber acknowledged that, at first, the
Claimant requested the payment of the solidarity contribution as well as the
default interest at a rate of 5% p.a. as from the moment it became due.
4
7.
In this respect, the Chamber took note that, in the meantime, and following FIFA’s
intervention in the matter, the Respondent had paid the full amount of solidarity
contribution to the Claimant. Moreover, the Chamber noted that the Claimant
had accepted this amount as being due as solidarity contribution.
8.
As a result of the above, the Chamber concluded that, as far as the payment of the
solidarity contribution is concerned, an amicable settlement had been reached
between the parties.
9.
Consequently, the Chamber established that only the Claimant’s demand
regarding the default interest at a rate of 5% p.a., as from the moment the
solidarity contribution became outstanding, remains disputed.
10.
In this respect, the Chamber, first and foremost, went on to examine whether the
applicable Regulations contain explicit provisions, based on which the Claimant
could be awarded default interest.
11.
In this regard, the Chamber acknowledged that the Regulations do not provide
for any specific provision stipulating, per se, the right for the Claimant to receive
default interest for a possible late payment of the solidarity contribution.
12.
In view of the above, the Chamber concluded that the entitlement to receive
default interest in connection with the solidarity mechanism cannot be derived
from the Regulations, but that the Regulations left the decision whether to award
default interest related to the payment of the solidarity contribution to the
competent decision-making body’s discretion.
13.
In continuation, the Chamber recalled that the Claimant’s principal entitlement to
receive its proportion of the solidarity contribution, which would in any case
constitute the basis for a possible award of default interest within the scope of the
deciding authority’s discretion, had already been settled amicably (cf. point I./10.).
14.
The settlement between the parties corresponds to an agreement that ends the
dispute and discharges both parties from any further obligation related to the
dispute.
15.
Also in this respect, the members of the Chamber recalled that, due to the
relevant amicable settlement and the good will also shown by the Respondent, no
decision with regard to the Claimant’s principal entitlement for the payment of
solidarity contribution as to the substance had to be taken by the Chamber.
5
16.
Moreover, the primary obligation corresponding to the payment of the solidarity
contribution was fulfilled by the Respondent and the Claimant has accepted the
payment. Therefore, the default interest, being an accessory obligation to the
solidarity contribution, ceased to exist.
17.
On account of the above, the members of the Dispute Resolution Chamber
unanimously reached the conclusion that there was no valid reason to award the
Claimant default interest.
18.
As a consequence, the Chamber decided that the claim of the Claimant, for the
default interest only, had to be rejected.
19.
Finally, the Dispute Resolution Chamber held that the claim of the Claimant for
“legal expenses” was also rejected in accordance with art. 15 par. 3 of the
Procedural Rules (edition 2005) and the Chamber’s respective longstanding
jurisprudence.
20.
Consequently, the Chamber concluded its deliberations by establishing that the
claim of the Claimant is rejected in full.
*****
III. Decision of the Dispute Resolution Chamber
The claim of the Claimant, Clube D, is rejected.
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
6
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
7