Solidarity Contribution
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 23 February 2007,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Philippe Diallo (France), Member
Essa M. Saleh Al Housani (United Arab Emirates), Member
Michele Colucci (Italy), Member
Mick McGuire (England). Member
on a matter between the club,
X, XX,
and the club,
Y, YY,
and the club,
Z, ZZ,
as “Intervening party”
regarding the solidarity contribution related to the
transfer of the player ...
I.
Facts of the case:
1.
The player .., XX, was born on 20 January 1982.
2.
According to the official confirmation received from the Football Association of
XX, the player was registered with the XX club, X, from 1 September 1998 until 24
January 2000 as an amateur and from 25 January 2000 until 1 December 2001 as a
non-amateur, between the ages of 16 and 19.
3.
On 6 July 2004, the player in question was transferred on a loan basis from the ZZ
club, Z, to the YYn club, Y, when the player was 22 years old. In December 2004,
the player was definitively transferred from Z to Y. According to these transfer
contracts, i.e. loan and definitive transfer contract, the YYn club paid USD
50’000.00 for the loan of the player and USD 200’000.00 for the definitive
acquisition of the player’s services.
4.
On 12 January 2006, X lodged a formal claim in front of FIFA regarding its portion
of the solidarity contribution and claimed 5% of USD 250’000.00.
5.
In this respect, the XX club invoked that it once paid EUR 350’000.00 in order to
acquire the services of the player in question. Therefore, and given that the player
.. played in the XXn “A” National team in 2002 and was nominated as the best
XXn player in the years 2003, 2004 and 2005, it is convinced that the agreements
presented in this file, i.e. loan agreement and definitive transfer agreement, do
not represent the actual facts. The XX club maintained that it is impossible that
the YYn club paid less for the transfer of the player than it had to pay a few years
ago.
6.
In reply to the claim, the YYn club asserted having paid 100% of the transfer
compensation to the player’s former club, Z. In this respect, it referred to article 9
of the relevant transfer contract it concluded with Z, according to which the latter
assumed the responsibility to pay the solidarity contribution to the club(s) involved
in the training of the player. Therefore, it deemed that X should turn against Z in
order to collect the amount relating to its part of the 5% solidarity contribution.
The translation of the relevant article 9 of the transfer contract signed between FC
Y and Z reads as follows:
“The parties agree that FC Z is obliged to pay proportion of the Compensation to
the club(s) involved in the training and education of Football Player according to
the Chapter IX of the FIFA Regulations for the Status and Transfer of Players
(Solidarity Mechanism)”.
Solidarity Contribution for the player ..
(Club X, XX / Club Y, YY / Z, ZZne)
2
7.
FIFA then informed the parties of the decisions reached by the Dispute Resolution
Chamber in similar cases.
8.
Z informed on 27 April 2006 that it is trying to conduct bilateral negotiations with
Y in order to execute payments to X. Such payments would be done on the basis
of an additional agreement which is to be signed between Z and Y. This
agreement would then indicate the concrete amounts calculated in accordance
with the FIFA Regulations and in which the provisions of the national legislations
of ZZ and YY would be taken into account in order to execute and to receive
international payments.
9.
The deadline granted to the parties in order to find an amicable solution elapsed,
however, without any result.
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 12 January
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, 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 (edition 2005). In accordance
with art. 24 par. 1 in connection 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 XX club, X, in connection with the transfer of the
professional player .. to the YYn club, Y, during the course of a contract.
Solidarity Contribution for the player ..
(Club X, XX / Club Y, YY / Z, ZZne)
3
4.
Subsequently, the members of the Chamber analyzed 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 player in question had
been registered for his new club before July 2005. Equally the Chamber took note
that the claim was lodged at FIFA on 12 January 2006. In view of the
aforementioned, the Chamber concluded that the former FIFA Regulations for the
Status and Transfer of Players (edition 2001, 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 carefully studied the facts outlined above, which show that the
player in question was transferred on 6 July 2004 from the ZZ club, Z, to the YYn
club, Y, on the basis of a loan agreement signed between the two aforementioned
clubs.
6.
In this respect, the Chamber referred to its well-established jurisprudence for cases
in which the Regulations for the Status and Transfer of Players (edition 2001)
apply, according to which no solidarity contribution is owed when a player is
transferred on the basis of a loan and not on the basis of a definitive transfer.
7.
Therefore, taking into consideration the above and in accordance with its
jurisprudence, the Chamber decided to reject the claim of the XX club with respect
to the part of its claim related to the transfer of the player in question to the YYn
club, Y, on a loan basis, i.e. until December 2004.
8.
Subsequently, the Chamber took note that, in December 2004, the player in
question was transferred on a definitive basis from Z to Y.
9.
The Chamber observed that, to this end, a transfer agreement had been signed
between Z and Y for the definitive transfer of the player .. to the aforementioned
YYn club and that the parties agreed on a transfer compensation amounting to
USD 200’000.
10.
As regards the transfer compensation paid by the Y to Z for the definitive transfer
of the player in question, the members of the Chamber took note of X’s objection
that the relevant transfer contract submitted to the Dispute Resolution Chamber
does not reflect the real value actually paid by the YYn club for the transfer of the
player.
Solidarity Contribution for the player ..
(Club X, XX / Club Y, YY / Z, ZZne)
4
11.
In this respect, the members of the Chamber stated that in accordance with the
legal principle of the burden of proof, which is a basic principle in every legal
system, a party asserting a fact has the obligation to prove the same.
12.
In accordance with the above-mentioned principle, X has the burden of proof that
the relevant transfer agreement remitted to the file by the YYn club does not
reflect the real circumstances of the transfer of the player to Y.
13.
Due to the lack of proof of X’s allegations, and in application of the abovementioned principle, the Chamber had no alternative than to consider that Y paid
an amount of USD 200’000 to Z for the definitive transfer of the player.
14.
At this point, the Chamber recalled that, as established in art. 25 of the
Regulations in combination with art. 11 par. 1 of the Regulations governing the
Application of the Regulations for the Status and Transfer of Players (hereafter:
the Application Regulations), the new club to which a player is transferred, is the
club responsible for the distribution of 5% of any compensation it paid to his
former club, to the club(s) involved in the training and education of the player
between the ages of 12 and 23.
15.
In this respect, the members of the Chamber took into account that the YYn club,
i.e. the player’s new club, rejected the claim put forward by X, maintaining that it
remitted 100% of the transfer compensation to Z for the transfer of the player in
question and that it is the obligation of the latter, in accordance with the
provisions of the transfer agreement, to pay the relevant solidarity contribution to
the club(s) having trained and educated the player.
16.
Moreover, the Chamber observed that the intervening party, Z, made efforts to
amicably settle the present affair without success.
17.
In this respect, taking into account the divergent statements of the parties
involved, 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. 11 of the Application
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.
18.
In light of the aforementioned well-established jurisprudence of the Chamber, the
members confirmed that it is the responsibility of the new club, Y, to pay the
relevant proportion of the solidarity contribution to FC Z, which was involved in
the player’s training and education.
Solidarity Contribution for the player ..
(Club X, XX / Club Y, YY / Z, ZZne)
5
19.
Moreover, Z, having unduly received the amount of money pertaining to solidarity
contribution, is to be held liable for the reimbursement to Y of the relevant
proportion(s) of the solidarity contribution payable by Y to the player’s former
training club, X.
20.
The Chamber then went on to deliberate on the proper calculation of the said
proportion due to X.
21.
To that regard, the members of the Chamber referred to art. 10 of the Application
Regulations, which provides the figures for the distribution of the solidarity
contribution, according to the period of time that the player was trained by a
specific club.
22.
In the present case, the Chamber outlined that according to the player passport
submitted by the Football Association of XX, the period to be taken into
consideration went from 1 September 1998 until 1 December 2001, i.e. the time
the player had been registered with X.
23.
In light of all of the above, the Chamber decided that the period of effective
training to be taken into account corresponds to 3 years and 3 months, for the
player’s registration with X between his ages of 16 to 19.
24.
Therefore, the Chamber established that, in accordance with the breakdown
provided for in art. 10 of the Application Regulations, X is entitled to receive 32,49
% of 5% of the transfer compensation paid by Y to Z in relation to the definitive
transfer of the player ...
25.
The Chamber noted that according to the transfer contract remitted to the file,
the player .. was definitively transferred from Z to Y for the amount of USD
200’000.
26.
Based on all the foregoing considerations, the Dispute Resolution Chamber
decided that Y has to pay the amount of USD 3’250 to X as solidarity contribution
for the player ...
27.
Furthermore, in line with the above, the intervening party, Z, is liable to reimburse
to Y the amount of USD 3’250.
Solidarity Contribution for the player ..
(Club X, XX / Club Y, YY / Z, ZZne)
6
III.
Decision of the Dispute Resolution Chamber
1.
The claim of X is partially accepted.
2.
The club, Y, has to pay the amount of USD 3’250 to X within 30 days as from the
date of notification of this decision.
3.
Any further claims lodged by X are rejected.
4.
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 to FIFA’s Disciplinary Committee, so that the
necessary disciplinary sanctions may be imposed.
5.
X is directed to inform Y 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.
6.
The intervening party, Z, has to reimburse to Y the amount of USD 3’250 within
30 days as from the date of notification of this decision.
7.
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 to FIFA’s Disciplinary Committee, so that the
necessary disciplinary sanctions may be imposed.
8.
Y is directed to inform the intervening party, Z, 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.
9.
According to art. 61 par. 1 of the FIFA Statutes this decision may be appealed
before the Court of Arbitration for Sport (CAS). The statement of appeal must be
sent to the CAS directly within 21 days of receiving notification of this decision
and has to contain all elements in accordance with point 2 of the directives issued
by the CAS, copy of which we enclose hereto. Within another 10 days following
the expiry of the time limit for the filing of the statement of appeal, the appellant
shall file with the CAS a brief stating the facts and legal arguments giving rise to
the appeal (cf. point 4 of the directives).
The full address and contact numbers of the CAS are the following:
Solidarity Contribution for the player ..
(Club X, XX / Club Y, YY / Z, ZZne)
7
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
Acting General Secretary
Encl.
CAS directives
Solidarity Contribution for the player ..
(Club X, XX / Club Y, YY / Z, ZZne)
8