Solidarity Contribution
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 12 January 2007,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Rinaldo Martorelli (Brazil), member
Philippe Piat (France), member
Mohamed Mecherara (Algeria), member
Jean-Marie Philips (Belgium), member
on the claim presented by the
Club X,
as “Claimant”
against the
Club Z,
as “Respondent”
regarding the payment of the solidarity contribution in connection with the
international transfer of the player Y.
I.
Facts of the case
1.
According to the Club X Football Federation, the player Y, born on 17 August
1978, was registered with the Club X (hereinafter: the Claimant) from 7 May
1991 to 3 January 1995, i.e. between the ages of twelve and sixteen. Equally, the
relevant Football Federation informed the present decision-making body that
the football season begins in January and ends in December of each year.
2.
Although it was requested by FIFA during the investigation of the present case,
the Claimant’s Football Federation did not inform concerning the exact date of
the player’s registration with the Club Z (hereinafter: the Respondent).
3.
In February 2005, the player Y was internationally transferred to the Respondent
by virtue of a transfer contract signed on 24 February 2005.
4.
On 6 March 2006, the Claimant requested the Dispute Resolution Chamber to
order the Respondent to pay the amount it was owed as solidarity contribution
for the relevant transfer. The Claimant asserted that on the basis of press
cuttings, the Respondent paid EUR 3,000,000 for the relevant transfer of the
player Y. The Claimant further mentioned that given that the player was
registered with it for four seasons (1991-1995), it is entitled to receive 25% of 5%
of the transfer compensation, namely EUR 37,500.
5.
On 12 April 2006, the Respondent submitted its position. In said petition, Club Z
asserted that according to the transfer contract concluded by the Club A
[hereinafter: the former club] and the Respondent, the clubs exchanged the
rights in the player Y and the player B and that consequently, no transfer
compensation was paid to [the former club] by the Respondent. In conclusion,
the Respondent stated that given that no compensation was paid by the new
club to the former club, no solidarity contribution is due to the Claimant in the
present case.
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6.
On 5 June 2006, the Claimant submitted its response to the position of the
Respondent. In the mentioned answer, the Claimant disputed the arguments put
forward by the Respondent. It asserted that the transfer of the player Y from
[the former club] to the Respondent took place in February 2005, whereas the
transfer of the player B from the Respondent to [the above-mentioned former
club] took place in July 2005, which means that when the player B moved to
Benfica, the case concerning the player Y had already been concluded. Equally,
the Claimant added that several press reports show that transfer compensation
was paid and that it therefore disputes the validity of the agreement signed
between [the former club] and Club Z. Furthermore, the Claimant asserted that
in another decision concerning the same player and the same transfer, another
Claimant received a solidarity contribution because the Chamber had found that
transfer compensation had been paid.
7.
Equally, Club X affirmed that even if a player exchange really had taken place, a
solidarity contribution would be payable under the relevant FIFA Regulations. It
further asserted that the exchange by the two clubs was not without financial
implications because both are major clubs and that such an exchange cannot be
free of charge. The Claimant added that it is unacceptable to use these means to
try to avoid paying a solidarity contribution for players whose market value is
worth millions of Euros.
8.
With regard to the value of the transfers, the Claimant mentioned that the
section which proves that the transfer contract concluded between [the former
club] and the Respondent was intended to avoid paying the solidarity
contribution is the one in which the Respondent agrees “to indemnify [the
former club] in the amount of EUR 1,750,000 in case [player B], by 1 July 2005,
did not present satisfactory results in his medical examination that permit him to
play football and that [Club Z] agreed to contract an insurance for personal
accidents for [player B], with expiration on 30 June 2005, in the amount of EUR
2,000,000 and to have [the former club] as the beneficiary.” The Claimant further
affirmed that the correct way to interpret this phrase is that the transfer of the
player Y to the Respondent had a price and that the price was EUR 2,000,000 or
at least EUR 1,750,000.
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9.
In its rejoinder, the Respondent reiterated the position set out in its initial
statement. The Respondent added that in accordance with article 25 of the 2001
edition of the FIFA Regulations for the Status and Transfer of Players, “If a nonamateur player moves during the course of a contract, a proportion (5%) of any
compensation paid to the previous club will be distributed to the club(s) involved
in the training and education of the player”. The Respondent also cited the rules
governing the application of the above-mentioned FIFA Regulations.
10.
The Respondent asserted that these articles from the FIFA Regulations do not
provide any basis for the interpretation suggested by the Claimant and that if no
transfer compensation was paid between the clubs involved in the relevant
transfer at the basis of the present dispute, no solidarity contribution is due.
11.
With regard to the Dispute Resolution Chamber’s decision mentioned by the
Claimant concerning the same transfer and involving the Respondent, the
Respondent explained that Club Z only had to pay solidarity contribution to the
other party due to the fact that it had not stated its position on the matter.
12.
The Respondent also indicated that clause 6 of the transfer contract, to which
the Claimant referred, only related to the medical condition and performance of
the two players in question and that it was not exercised because the player B is
still playing for [the former club] and the player Y is still playing for the
Respondent. Therefore, the amount of EUR 1,750,000 cannot be used as a
parameter for calculating the solidarity contribution.
13.
The Respondent mentioned that clause 8 of the transfer agreement, to which
the Claimant also referred, was only included for insurance purposes and has
nothing to do with transfer compensation.
14.
Finally, the Respondent put forward that the Claimant had no legal basis to
dispute the validity of the transfer contract submitted by the Respondent. In
conclusion, the Respondent asserted that given that no compensation was paid
by the new club to the former club, no solidarity contribution is due to the
Claimant in the case at hand.
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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 article 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 6 March 2006,
as a consequence the Chamber concluded that the revised Rules Governing
Procedures (edition 2005) on matters pending before the decision-making bodies
of FIFA are applicable on the matter at hand.
2.
With regard to the competence of the Chamber, article 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 article 1 par. 1, 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
current version of the aforementioned 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 claimed by the Claimant in connection with the international
transfer of the professional player Y during the course of a contract.
4.
Subsequently, the members of the Chamber analysed 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 article 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 prior to July 2005. Equally, the Chamber took note
that the claim was lodged at FIFA on 6 March 2006. In view of the
aforementioned, the Chamber concluded that the former FIFA Regulations for
the Status and Transfer of Players (edition 2001, hereinafter: the Regulations) are
applicable on the case at hand as to the substance.
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5.
In continuation and entering into the substance of the matter, the Dispute
Resolution Chamber carefully considered and analysed the arguments and all
documents presented by both the Claimant and the Respondent during the
investigation of this case.
6.
First of all, the members of the Dispute Resolution Chamber duly noted that
according to the contents of the transfer contract signed between [the former
club] and the Respondent (Note: This transfer contract was not remitted to Club
X due to confidentiality reasons and due to the fact that [the former club] is not
a party in the present litigation. Yet, the Claimant was informed of the clauses
pertaining to the exchange of the players, in particular of the clauses 6 and 8 of
the relevant contract.), the relevant transfer did not give rise to the payment of a
transfer compensation but was based on a player exchange. Clause 1 of said
contract states that “[the former club] hereby permanently transfers 100% of the
federative and financial rights of the football player [Y] to [Club Z]. [Club Z], in
exchange, hereby permanently transfers 100% of the federative and financial
rights of the football player [B] to [the former club]”.
7.
In this respect, and as an “obiter dictum”, initially the Chamber deemed
important to emphasize 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, the concept of “federative rights” to players does not
exist anymore. It was replaced by the principle of maintenance of contractual
stability between the contracting parties, i.e. professional players and clubs.
8.
Equally, the members of the Chamber considered the contents of clause 2 of the
relevant transfer contract at the basis of the present litigation, which states that
“[the former club] and [Club Z] grant the same values to each of the players so
that both [the former club] and [Club Z] declare to have nothing else to receive
from each other in relation to [player Y]’s and [player B]’s transfers performed
herein”.
9.
As consequence of all the above, the Dispute Resolution Chamber concluded that
in the present case a transfer contract was signed between [the former club] and
the Respondent which did not mention any specific amount as transfer
compensation to be paid for the move of the player Y, but that an exchange
with the player B had been agreed between the two relevant clubs.
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10.
However, the Dispute Resolution Chamber also acknowledged the contents of
clause 6 of the mentioned transfer contract, which textually states the following:
“This agreement is subject to a full physical medical examination of [player Y]
evidencing, to the satisfaction of [Club Z], that he is able to play football
professionally. Also, [Club Z] agrees to indemnify [the former club] in the amount
of € 1.750.000,00 (one million, seven hundred and fifty thousand Euros) in case
[player B], by July 1, 2005, does not present satisfactory results in his medical
examination that permit him to play football”.
11.
In continuation, the Chamber outlined that, as a general principle, a transfer
contract constitutes a bilateral agreement, which implies a mutually agreed
exchange of obligations between the parties involved. In the present case, by
means of the transfer contract the parties concerned mutually agreed to an
exchange of obligations, whereby no transfer compensation payment was
stipulated but in which two players were exchanged. Yet, the Chamber
concluded that the present exchange of players implies indirectly a financial
agreement due to the fact that, in practice, the relevant qualities of the players
have a financial value in the football employment market. In casu, the parties
explicitly recognised this fact in clause 2 of the relevant transfer agreement by
stating that [the former club] and the Respondent would grant the same values
to each of the players concerned. Consequently, the deciding authority was of
the unanimous opinion that the provisions regarding the solidarity mechanism
cannot be circumvented by means of an exchange of players.
12.
Having said that, the members of the Dispute Resolution Chamber noted that
the problem in the present litigation is to establish and settle on, if possible, the
amount of money indirectly agreed upon between the parties for the transfer of
the player Y to Club Z.
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13.
In this respect and in the present case, the Chamber outlined that in the case at
hand the relevant transfer contract does actually contain rather clear references
to the value the two clubs concerned attributed to the player. In fact, so the
deciding body, outlined that clause 6 of the transfer contract can be interpreted
as being the indirect value accorded between both clubs for the transfer of the
player Y, considering the fact that the Respondent agreed to compensate [the
former club] in the amount of EUR 1,750,000 in the event that the player B’s
medical examination results would not be satisfactory enough to enable him to
play football. As a consequence, the Chamber deemed that the relevant
provision can be considered as being the financial value the clubs concerned
considered to be appropriate for the transfer of the player Y.
14.
Once this financial aspect was established, the members of the Chamber referred
to article 25 par. 1 of the Regulations, which states that “if a non-amateur player
moves during the course of a contract, a proportion (5%) of any compensation
paid to the previous club will be distributed to the club(s) involved in the
training and education of the player. This distribution will be made in proportion
to the number of years the player has been registered with the relevant clubs
between the ages of 12 and 23”.
15.
The Chamber made further reference to article 10 of the Regulations governing
the Application of the Regulations for the Status and Transfer of Players (edition
2001), which provides the figures for the distribution of the solidarity
contribution, in accordance with the time the player was effectively trained by a
club, in casu Club X.
16.
In the present case, the Chamber outlined that according to the confirmation of
the Claimant’s Football Federation, the player Y, born on 17 August 1978, was
registered with the Claimant from 7 May 1991 to 3 January 1995, between the
ages of 12 and 16.
17.
The Chamber duly noted that the Claimant is requesting solidarity contribution
corresponding to 25% of 5% of an alleged transfer compensation, paid by the
Respondent to [the former club] for the transfer of the player Y.
18.
Taking into account all its previous considerations (cf. points II, 11-13), the
Chamber concluded that the relevant proportion of solidarity contribution has to
be calculated based on the amount of EUR 1,750,000.
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19.
Therefore, the Chamber established that, in accordance with the breakdown
provided for in article 10 of the Regulations governing the Application of the
Regulations for the Status and Transfer of Players (edition 2001), the Claimant is
entitled to receive 28,33% of the 5% of the amount indirectly agreed upon
between the Respondent and [the former club] for the transfer of the player Y,
i.e. EUR 1,750,000.
20.
The Dispute Resolution Chamber decided that the Respondent must pay to the
Claimant the amount of EUR 24,790 due as solidarity contribution in relation
with the international transfer of the player Y to Club Z.
III.
Decision of the Dispute Resolution Chamber
1.
The claim lodged by the Claimant, Club X, is partially accepted.
2.
The Respondent, Club Z, has to pay the amount of EUR 24,790 to the Claimant.
3.
Any further claims of the Claimant are rejected.
4.
The amount due to the Claimant has to be paid by Club Z within the next 30
days as from the date of notification of this decision. If the aforementioned
amount is not paid within the stated deadline, an interest rate of 5% per year
shall apply as of expiring of the fixed time limit.
5.
If the aforementioned amount is not paid within the above-stated deadline, the
present matter will be submitted to FIFA’s Disciplinary Committee, so that the
necessary disciplinary sanctions can be imposed.
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6.
The Claimant is directed to inform the Respondent, 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.
7.
According to article 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
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:
Jérôme Valcke
General Secretary
Enclosed: CAS directives
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