Solidarity Contribution
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 10 January 2008,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Theo van Seggelen (Netherlands), member
Joaquim Evangelista (Portugal), member
Ivan Gazidis (USA), member
Reinhard Rauball (Germany), member
on the claim presented by the
Club A
Represented by Mr. XXX
as Claimant
against the
Club B
as Respondent
regarding solidarity contribution related to the transfer of the player C
I.
Facts of the case
1.
The player, player C (hereafter: the Player) was born on 23 October 1982.
2.
According to the Football Association of Player C, the Player was registered with the Club
A (hereafter: the Claimant), from 18 July 2003 to 30 June 2004 and from 7 July 2004 to 30
June 2005.
3.
The Football Association of Player C also stated that the Player had been registered with
the Club D, from 1 September 1997 to 21 July 2006. During this period (from 18 July 2003
to 30 June 2004 and from 7 July 2004 to 30 June 2005) the Player had been under dual
registration for the Claimant. The XYZ regulations allegedly allow for a loan under the
terms of the FIFA Regulations for the Status and Transfer of Players as well as for a socalled dual registration. According to art. 40 of the national regulations, clubs belonging
to the XYZ first division were authorised to register their players for a lower division club.
The players were then able to play for both clubs. However, in such cases, the internal
regulations stipulated that only the original club received any compensation for the
players’ training/education.
4.
According to the Football Federation of Club B, the Player was first registered as a
professional for the Club E on 10 August 2006 and loaned to the Club B (hereafter: the
Respondent) on 5 January 2007.
5.
On 8 August 2006, the Claimant lodged a complaint against the Respondent and asserted
that, according to unofficial media reports, the Player had been transferred from the
Club D to the Respondent in July 2006 against a transfer compensation of EUR 6,000,000.
Therefore, the Claimant demanded a solidarity contribution amounting to 20% of 5% of
EUR 6,000,000 (= EUR 60,000) plus interest of 5% per year as from the date of the Player’s
registration.
6.
The Claimant asserted that the Respondent had refused to pay the relevant amount as
the Player had never been registered with the Respondent and had been immediately
loaned to the Club E. The Claimant also stated that as the Football Association of Club A
had issued the international transfer certificate to the Respondent, the solidarity
contribution was due even without registration. In support to its allegations, the
Claimant also submitted a letter from the Respondent dated 20 July 2006, stating that it
had so far not requested a registration for the Player.
7.
On 30 September 2006, in reply to the Claimant’s complaint, the Respondent refused to
make any payment on the grounds that it had never registered the Player. The Claimant
was well advised to lodge its claim with another club, if any.
Solidarity contribution for the player C
(Club A / Club B)
2
8.
In its replica, the Claimant maintained that the fact the Player was allegedly not
registered for the Respondent was no reason for that club to not comply with the
obligation to pay. It was hard to believe that a player was acquired for EUR 6,000,000 but
then not registered. According to the Claimant, the Player's non-registration claimed by
the Respondent could only but interpreted as unintentional avoidance of the solidarity
payment. In this connection, the Claimant cited the following szenario: Club A acquires a
player from club B, which belongs to another football association, and transfers him
immediately to club C. As in the above case, club A could then claim it did not need to
pay any solidarity contribution as the player was never registered with club A. At the
same time, club C could, however, refuse to make a solidarity contribution on the
grounds that it had not paid any transfer compensation. Club C could acquire another
player from club D through a further transfer and pass him on directly to club A. Both
club A and club C could use this procedure to acquire players without paying solidarity
contributions, which was not the objective of the FIFA Regulations for the Status and
Transfer of Players.
9.
The Claimant also believes that the dual registration mentioned by the Football
Association of Club A is irrelevant. The case had to be judged solely on the basis of the
provisions of the FIFA Regulations for the Status and Transfer of Players. As the Claimant
had educated the Player during the 2003/2004 and 2004/2005 seasons, the solidarity
contribution was owed to the Claimant and not to Club D. Moreover, the Claimant
pointed out that the Respondent had not denied making payments for the premature
termination of the employment contract between the Player and Club D.
10.
On 9 May 2007, the Respondent requested the claim be rejected for the following
reasons:
a) The Player had not been registered with the Respondent before 4 January 2007.
b) On 4 January 2007, the Player was transferred free of charge from the Club E, to the
Respondent up to the 30 June 2007. The Player’s registration had therefore taken place
on the basis of a national transfer free of charge.
c) According to the Football Association of Club A, it was not the Claimant who was
entitled to a solidarity payment but, at best, Club D.
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 art. 18 par. 2 and 3 of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (DRC).
The present matter was submitted to FIFA on 8 August 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 (hereafter: the Procedural
Rules) are applicable to the matter at hand.
Solidarity contribution for the player C
(Club A / Club B)
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2.
With regard to the competence of the Chamber, art. 3 par. 1 of the above-mentioned
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 art. 24 par. 1 in combination with
art. 22 (d) of the aforementioned Regulations, the Dispute Resolution Chamber shall
adjudicate on disputes between two clubs belonging to different Associations 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 transfer of the professional Player C 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 art. 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 Club E on 10 August 2006
and for the Respondent on 5 January 2007, respectively. Equally, the Chamber took note
that the claim was lodged at FIFA on 8 August 2006. In view of the aforementioned, the
Chamber concluded that the current FIFA Regulations for the Status and Transfer of
Players (edition 2005, hereafter: the Regulations) are applicable to the case at hand as to
the substance.
5.
In continuation, and entering into the substance of the matter, the members of the
Chamber started to carefully study the facts outlined above and emphasised that, as
established in art. 21 of the Regulations in combination with art. 1 of the Annex 5 of the
Regulations, the new club to which a player was transferred during the course of his
contract has to distribute 5% of any compensation paid to the player’s former club to the
club(s) involved in the training and education of the player between the seasons of his
12th and 23rd birthday.
6.
The Chamber subsequently took into account that, in accordance with the information
received from the Football Association of Club A, the Player was born on 23 October
1982 and registered with the Claimant for the first time as from 18 July 2003 to 11 June
2004 and, later on, as from 7 July 2004 to 30 June 2005. In addition, the Chamber noted
that the Player was apparently registered during these periods of time also for Club D. In
fact, according to the Football Association of Club A, the Player was, in principle,
registered for Club D as from 1 September 1997 to 21 July 2006 and, within this period of
time, i.e. as from 18 July 2003 to 11 June 2004 and as from 7 July 2004 to 30 June 2005,
Solidarity contribution for the player C
(Club A / Club B)
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under a so-called dual registration with the Claimant in the sense of the national
regulations.
7.
As a next step, and turning its attention to the Respondent’s argumentation, the
members of the Chamber noted that the Respondent denied being liable to pay any
compensation to the Claimant maintaining that the Player was transferred to it free of
charge on a loan basis from the Club E, at the beginning of January 2007. In other words,
the Chamber noted that the Respondent particularly set up its defence on the allegation
that only a national transfer was at the basis of the Player’s registration (i.e. a transfer
from the Club E, to the Respondent) and that no transfer compensation was paid by the
Respondent to the Player’s former Club E. Equally, the members of the Chamber noted
that the Respondent referred to the information put forward by the Football Association
of Club A, according to which, in case of a so-called XYZ dual registration, only the
player’s main club, in casu Club D, and not the club for which the player was additionally
registered, would be entitled to solidarity contribution payments.
8.
As a next step, and turning its attention once again to the Claimant, the Chamber noted
that the Claimant bases its complaint on an alleged international transfer of the Player
from Club E to the Respondent in which a transfer compensation of EUR 6,000,000 was
allegedly paid according to unspecified press releases.
9.
In view of the aforementioned contradictory positions put forward by the parties in
dispute, the members of the Chamber concurred that, first of all, they have to establish
which of the two XYZ clubs the Player was registered for as from 18 July 2003 to 30 June
2004 and 7 July 2004 until 30 June 2005 (Club D or the Claimant) would, in general, be
entitled to solidarity contribution payments.
10.
Thereto, the members of the Chamber deemed it of particular importance to point out
that in accordance with art. 5 par. 2 of the Regulations, players may only be registered
for one club at a time. Equally, the Chamber underlined that this principle cannot be
modified by the associations in their respective national regulations, as it seems to have
been done in XYZ, due to art. 1 par. 3 (a) of the Regulations, which clearly establishes
that art. 5 of the Regulations must be included in the national regulations without any
modification.
11.
As a consequence, the Chamber emphasised that the apparently existing XYZ dual
registration contradicts the binding provision of art. 5 par. 2 of the Regulations and,
therefore, must be considered as null and void.
12.
Moreover, the Chamber recalled the purpose of the solidarity mechanism system
pointing out that the said system is meant to foster the training and education of young
players by awarding a contribution to the club(s) that had trained the player during the
beginning of his career throughout his entire sporting activity. Consequently, the
Chamber concurred that even if the dual registration invoked by the Football Association
Solidarity contribution for the player C
(Club A / Club B)
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of Club A would be legally valid, which, as mentioned in the preceding paragraph, is not
the case, only the club that effectively trained and educated the Player during the
periods of time he was under such dual registration would be entitled to solidarity
contribution payments. Otherwise, so the Chamber, the mentioned spirit and purpose of
the solidarity mechanism system would be infringed.
13.
In view of the above, and taking into account that, according to the Football Association
of Club A, the Player was registered with Club D as from 1997 to 2006 and, within these
years, for two seasons (i.e. the seasons 2003/2004 and 2004/2005) for the Claimant in
order to temporarily enable the Player’s activity towards the latter, the Chamber
unanimously concurred that only the Claimant – and not Club D – would be entitled to
any solidarity contribution payments possibly due in the case at hand for the relevant
periods of time.
14.
Therefore, the Chamber decided that the Respondent’s argument, according to which
rather Club D than the Claimant would be entitled to solidarity contribution payments,
cannot be backed at all.
15.
As a next step, the Chamber turned to the question as to whether, as maintained by the
Respondent, effectively no international transfer occurred prior to the Player’s
registration for it.
16.
In this respect, after having carefully studied all the documents on file, the members of
the Chamber particularly noted that the Football Federation of Club B confirmed the
Respondent’s argument, according to which the Player was registered for it on 5 January
2007 only. In fact, according to the Player’s player passport issued by the Football
Federation of Club B, the Player was registered in XYZ for the first time on 10 August
2006 as a professional for the Club E, and, at a later date, on 5 January 2007, for the
Respondent. Equally, the Chamber noted that the relevant document issued by the
Football Federation of Club B mentions that the Player’s registration for the Respondent
took effect due to a loan. Moreover, the Chamber acknowledged that the written
documents presented by the Respondent fully support its allegations that the Player was
transferred to it on a loan basis from the Club E, in January 2007 only.
17.
Furthermore, and turning its attention once again to the Claimant, the Chamber noted
that no written documents were presented by the Claimant with regard to its allegations
that the Player was transferred in August 2006 from the Club D, to the Respondent who,
according to the Claimant, immediately loaned the Player to the Club E. Therefore, in
application of art. 12 par. 3 of the Procedural Rules, the Chamber concurred that the
Claimant has not substantiated the alleged international transfer of the Player from XYZ
to the Respondent. In fact, the members of the Chamber were of the opinion that such
transfer merely reflects the Claimant’s own assumption. They reiterated that according to
the documents on file, it rather seems to be the case that the Player was transferred in
August 2006 from the Club D, to the Club E for which he was registered on 10 August
Solidarity contribution for the player C
(Club A / Club B)
6
2006, and then, only five months later, i.e. on 5 January 2007, loaned from the latter to
the Respondent free of charge.
18.
In sum, the Chamber concluded that neither the alleged international transfer of the
Player between Club D and Club E nor the payment of a transfer compensation
amounting to EUR 6,000,000 between these two clubs had been substantiated by the
Claimant. Therefore, the Chamber decided that the Claimant’s complaint must be
rejected due to the lack of legal basis.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Club A, is rejected.
2.
According to art. 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:
Avenue de Beaumont 2
CH-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
Encl.: CAS directives
Solidarity contribution for the player C
(Club A / Club B)
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