Solidarity Contribution
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 5 February 2010
in the following composition:
Slim Aloulou (Tunisia), Chairman
Michele Colucci (Italy), member
Johan van Gaalen (South Africa), member
Ivan Gazidis (England), member
Zola Majavu (South Africa), member
on a matter between the club
U,
as Claimant
and the club
B,
as Respondent
regarding the solidarity contribution related to
the transfer of the player S
I.
Facts of the case
1.
The Football Federation P (hereinafter: the FFP) confirmed that the player, S
(hereinafter: the player), born on 14 March 1977, was registered with its affiliated
club, U (hereinafter: the Claimant), from 12 January 1988 until 13 March 1994 as
an amateur and from 14 March 1994 until 6 August 1998 as a professional.
2.
The sporting season in P ran, until the season 1999/2000, from 1 August to 31 July
of the following year.
3.
On 12 July 2005, the player was registered with the club B (hereinafter: the
Respondent) as a professional.
4.
On 4 April 2007, the Claimant contacted FIFA claiming its proportion of solidarity
contribution in connection with the transfer of the player from the club, A, to the
Respondent for the alleged amount of EUR 1,500,000. In support of its claim, the
Claimant submitted a copy of a news extract from the Internet.
5.
In particular, the Claimant is requesting 80% of the 5% solidarity contribution
connected with the relevant transfer of the player, i.e. the amount of EUR 60,000,
plus interest to be applied on the said amount as from the due date of payment as
well as EUR 5,000 for legal expenses incurred by the Claimant.
6.
In its reply, the Respondent rejected the claim and indicated that no transfer
agreement was signed with the club, A regarding the transfer of the player to the
Respondent, and equally, that no transfer compensation was paid.
7.
In its replica, the Claimant adhered to its claim and insisted on the fact that, in its
opinion, a transfer compensation had been paid for the transfer of the player
from A to the Respondent.
8.
In its final position, the Respondent reiterated its previous statement explaining
that it did not pay any transfer compensation for the transfer of the player and
that no transfer agreement was signed.
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, the Chamber first referred to art. 21
par. 1 and 2 of the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (edition 2008; hereinafter:
Procedural Rules). The present matter was submitted to FIFA on 4 April 2007, thus
before the aforementioned Procedural Rules entered into force on 1 July 2008.
Therefore, the Dispute Resolution Chamber concluded that the 2005 edition of the
Procedural Rules is applicable to the matter at hand (cf. art. 18 par. 2 and 3 of the
Procedural Rules; edition 2005).
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
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combination with art. 22 lit. d) of the Regulations on the Status and Transfer of
Players (editions 2008 and 2009) 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 player
between two clubs belonging to different associations.
3.
Furthermore, and taking into consideration that the player was registered with his
new club on 12 July 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 4
April 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 to
the player’s former club, the club A, for the transfer of the player.
5.
In particular, the Chamber took due note that, on the one hand, the Claimant
affirmed that the player was transferred from the club A to the Respondent for
the alleged amount of EUR 1,500,000. On the other hand, the Chamber took due
note that the Respondent vehemently contested the affirmation of the Claimant
and affirmed that it had not paid any transfer compensation to A.
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
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 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.
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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 A, 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 had been paid for the
transfer of player.
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 S.
III.
Decision of the Dispute Resolution Chamber
The claim of the Claimant, U, is rejected.
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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).
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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
Secretary General
Encl.
CAS directives
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