Solidarity Contribution
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 26 February 2010,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Philippe Piat (France), member
Takuya Yamazaki (Japan), member
Mario Gallavotti (Italy), member
Todd Durbin (USA), member
on a matter between the club
R
and the club
FC Z
and the club
FC AA
as Intervening party
regarding a solidarity contribution dispute related to the
transfer of the player F
I.
Facts of the case
1.
The Football Federation of T confirmed that the player F (hereinafter: the player),
born on 9 September 1977, was registered with its affiliated club, R (hereinafter:
the Claimant), as an amateur player from 1 April 1989 until 6 May 1992.
2.
The sporting season in T runs from 1 September until 31 August of the following
year.
3.
According to a written statement from the Football Union of U, the player was
registered with FC Z (hereinafter: the Respondent) on 4 August 2006.
4.
On 26 August 2008, the Claimant contacted FIFA claiming its proportion of the
solidarity contribution in connection with the transfer of the player from the club,
R (hereinafter: the club involved), to the Respondent, for the amount of EUR
7,400,000 (relevant transfer contract provided).
5.
The Claimant requested the payment of EUR 55,500 as solidarity contribution.
6.
The Respondent clarified that 100% of the transfer compensation was allegedly
paid to the player’s former club, in other words, it omitted to deduct 5% relating
to solidarity mechanism. Furthermore, the Respondent alleged that the claim of
the Claimant is time-barred because the player was registered on 4 August 2006
with the Respondent, whereas the Claimant lodged its claim on 26 August 2008.
7.
FIFA informed all the clubs involved of its jurisprudence, according to which the
player’s new club is ordered to remit the relevant proportion(s) of the 5%
solidarity contribution to the club(s) involved in the player’s training in strict
application of the relevant provisions of the Regulations on the Status and
Transfer of Players. At the same time, the player’s former club is ordered to
reimburse the same proportion(s) of the 5% of the compensation that it received
from the player’s new club. Therefore, FIFA invited the Respondent to distribute
the relevant proportion of the 5% solidarity contribution of the transfer
compensation to the Claimant, and the club involved to reimburse the Respondent
the relevant proportion of the 5% of the compensation agreed upon with the
Respondent.
8.
The club involved informed FIFA that it disagreed with the position of the
Respondent. The transfer compensation paid by the Respondent was allegedly a
sum after deductions. In consequence, the club involved is of the opinion that it
does not have to pay any solidarity contribution. The DRC jurisprudence referred
in its correspondence should not automatically be applicable for cases in which the
parties agreed a fee after deductions. In art. 2 of the contract the parties agreed
the following: “The Transfer Fee is a net amount due to be received by R from FC Z
and, therefore, the payment of the Transfer Fee shall be made without deduction
of any taxes, duties, withholdings, banking charges or any other similar charges of
any nature whatsoever, present or future, all of which shall be borne and payable
by FC Z.”
2
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. The present matter was submitted to FIFA on 26 August 2008
as a consequence the Chamber concluded that the revised Rules Governing
Procedures (edition 2008) are applicable on the matter at hand.
2.
With regard to the competence of the Chamber, art. 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. In accordance with art. 1 par. 1
of the aforementioned Regulations, which describes the scope and the field of
application of the relevant Regulations, in connection with the articles 24 par. 1
and 22 (d) of the said 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 in connection with the international transfer of the professional F.
4.
Furthermore, and taking into consideration that the player was registered for the
Respondent on 4 August 2006, the Chamber analysed which regulations should be
applicable as to the substance of the matter. In this respect, the Chamber
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
matter was submitted to FIFA on 26 August 2008, the previous edition of the
regulations (edition 2005; hereinafter: the Regulations) is applicable to the matter
at hand as to the substance.
5.
In continuation, the Chamber duly noted that the Respondent was of the opinion
that the present claim should be viewed as time-barred, since the player was
registered on 4 August 2006 with the Respondent, whereas the Claimant lodged
its claim on 26 August 2008.
6.
In view of the above, the Chamber deemed fundamental to underline that in
order to determine whether it could hear the present case, it should, first and
foremost, establish which is “the event giving rise to the dispute”, i.e. which is the
starting point of the time period of two years set out under art. 25 par. 5 of the
Regulations. In this respect, the Chamber referred to art. 2 par. 1 of Annex 5 of the
Regulations, which stipulates that “The new club shall pay the solidarity
contribution to the training club(s) (…) no later than 30 days after the player’s
registration or, in case of contingent payments, 30 days after the date of such
payments”.
3
7.
Reverting to the facts of the present case, the Chamber emphasized that the
player was registered for the Respondent on 4 August 2006.
8.
On account of the foregoing, and bearing in mind, in particular, that the transfer
compensation was paid in a lump sum, the Chamber unanimously decided that the
event giving rise to the dispute, regarding the payment of solidarity contribution
occurred 30 days after the player’s registration with the Respondent.
9.
Therefore, the members of the Chamber came to the firm conclusion that, in casu,
and, in accordance with art. 2 par. 1 of Annexe 5 of the Regulations, the payment
of contribution fell due on 3 September 2006, i.e. 30 days after the registration of
the player within the Football Union of U, and that this latter date was the
starting point of the time period of two years set out under art. 25 par. 5 of the
Regulations. Equally, the Chamber held that the time period of two years had
elapsed, in casu, on 3 September 2008.
10.
As a consequence, the Chamber concluded that less than two years had elapsed
between the event giving rise to the dispute, i.e. the due date of payment of the
solidarity contribution, which was on 3 September 2006, and the submission of the
present claim to FIFA by the Claimant on 26 August 2008, and therefore that the
claim of the Claimant for solidarity contribution can be heard by the Dispute
Resolution Chamber.
11.
In continuation, and entering into the substance of the matter, the members of
the Chamber started by acknowledging that the Claimant is requesting EUR 55,500
based on a transfer amount of EUR 7,400,000 paid by the Respondent to the club
involved in connection with the international transfer of the player.
12.
Moreover, the Chamber duly noted that according to the relevant transfer
agreement remitted to FIFA the player was transferred to the Respondent for the
amount of EUR 7,400,000.
13.
In continuation, the members of the Chamber emphasised that, as established in
the art. 21 of the Regulations 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 to 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 the number of years the player has been registered with
the relevant clubs between the sporting seasons of his 12th and 23rd birthday.
14.
In this respect, the Chamber took due note that the Football Federation of T
confirmed that the player, born on 9 September 1977, was registered with the
Claimant from 1 April 1989 until 6 May 1992.
15.
In continuation, the Chamber duly noted that the club FC Z (the player’s new club)
asserts having paid the entire amount of EUR 7,400,000 agreed upon as transfer
4
compensation, to the club of T (the player’s previous club). In other words, the
club omitted to deduct 5% of the relevant transfer compensation relating to the
solidarity mechanism.
16.
In this respect, the Chamber acknowledged that the Respondent requests that in
case it should pay any solidarity contribution the club involved should reimburse
the relevant amount of solidarity contribution.
17.
In this respect, the Chamber noted that according to the relevant transfer
agreement the Respondent and the club involved agreed a transfer compensation
amounting to EUR 7,400,000. Contrary to the allegations of the club involved, the
relevant transfer agreement does not stipulate that the transfer compensation
was paid after deduction of solidarity contribution.
18.
Subsequently, the Chamber referred to its well-established jurisprudence applied
in similar cases, in accordance with which the player’s new club is ordered to remit
the relevant proportion(s) of the 5% solidarity contribution to the club(s) involved
in the player’s training in strict application of art. 1 and 2 of the Annexe 5 to the
Regulations. At the same time, the player’s former club is ordered to reimburse
the same proportion(s) of the 5% of the compensation that it received from the
player’s new club.
19.
As a result and in consideration of the above-stated jurisprudence, the Chamber
decided to reject the allegations of the Respondent.
20.
In view of the above, as well as considering the points II. 13 and 14 above, the
Chamber decided that the Respondent must pay to the Claimant the amount of
EUR 49,321 and that the club involved must reimburse the amount of EUR 49,321
to the Respondent.
5
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the club R is partially accepted.
2.
FC Z has to pay to the club R the amount of EUR 49,321, within 30 days as from
the date of notification of this decision.
3.
If the aforementioned sum is not paid within the aforementioned deadline, an
interest rate of 5% per year will apply as of expiry of the fixed time limit and the
present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee
for its consideration and a formal decision.
4.
The final amount of costs of the proceedings in the amount of CHF 5,000 are to be
paid by FC Z, within 30 days of notification of the present decision as follows:
4.1
The amount of CHF 3,000 to FIFA to the following bank account with
reference to case no.:
UBS Zurich
Account number 366.677.01U (FIFA Players’ Status)
Clearing number 230
IBAN: CH27 0023 0230 3666 7701U
SWIFT: UBSWCHZH80A
4.2.
The amount of CHF 2,000 to R.
5.
Any further claims lodged by the club R are rejected.
6.
R is directed to inform FC Z 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.
7.
FC R has to reimburse the amount of EUR 49,321 to FC Z within 30 days as from
the date of notification of this decision.
8.
If the aforementioned sum is not paid within the aforementioned deadline, an
interest rate of 5% per year will apply as of expiring of the fixed time limit and
the present matter shall be submitted, upon request, to FIFA’s Disciplinary
Committee for its consideration and a formal decision.
9.
FC Z is directed to inform FC R 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.
6
10.
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
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
Secretary General
Encl.
CAS directives
7