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. Sahleh-Al-Housani (United Arab Emirates), member
Michele Colucci (Italy), member
Mick McGuire (England), member
on the claim presented by
the club, X,
as Claimant
against
the club, Y
as Respondent and counter-Claimant
regarding solidarity contribution related to the transfer of the player Z
I. Facts of the case
1.
The player, Z, was born on 22 October 1979.
2.
According to the player passport provided by the Football Federation of X, the
player was formerly registered with X on a loan basis from 10 June 1999 until 30
June 2001.
3.
On 23 June 2006, X lodged a claim in front of the Dispute Resolution Chamber
(DRC) against Y (hereinafter referred to as “Y”) for payment of its proportion of
the solidarity contribution on the basis of article 25 of the former Regulations
for the Status and Transfer of Players as well as art. 10 of the Regulations
Governing the Application of the said Regulations (edition 2001), the transfer in
question allegedly having transpired prior to the coming into force of the
current version of the said Regulations (edition 2005).
4.
X furthermore initially based its claim on a period of registration as from 10
June 1999 until 9 June 2000 asserting that it is entitled to 10% of the 5%
solidarity contribution, i.e. the amount of EUR 18,750.
5.
After having presented a copy of the player passport at FIFA’s request, X
increased the amount of solidarity contribution that it claims from Y to the
amount of EUR 39,056 (20.83% of the 5% solidarity contribution).
6.
In addition, X claims payment of default interest of 5% p.a. as from the day on
which the payment was effectively due.
7.
According to X, the player was transferred from the W to Y in 2005 for the sum
of EUR 3,750,000.
8.
The Football Federation of Y has confirmed that the player in question was
registered with Y on 2 August 2005.
9.
In reply to the claim, Y acknowledges that X is entitled to solidarity contribution
to the amount of EUR 18,750.
10. However, Y asserts that it can only effect the relevant payment on the basis of a
legal invoice in the light of the fact that Y is a listed company on the … Stock
Exchange and therefore cannot make any payments without the legal
documentation supporting it.
11. X rejects the arguments presented by Y and points out that on 27 March 2006
an agreement was entered into by and between the clubs involved relating to
2
the payment by Y to X of the amount of EUR 18,750 as solidarity contribution. A
copy of this agreement was presented by X.
12. X asserts that it sent several invoices to Y at Y’s request prior to having entered
into the aforementioned agreement.
13. Y insists on the fact that X must send a legal invoice maintaining that the
documents that it has received from X simply are letters.
14. During the investigation into the present matter, Y has paid the amount of EUR
18,750 to X, receipt of which has been confirmed by X.
15. X therefore finally claims payment of the remainder of EUR 20,306.
16. Y refutes this claim maintaining that X has always asked for the amount of EUR
18,750 and that the parties even agreed to conclude an agreement to this effect
on 27 March 2006, a copy of which was presented by X.
17. Y points out that in accordance with this agreement, X expressly declared that
there was nothing more to be received from Y in terms of the solidarity
contribution relating to the player, Z (cf. clause 4 of the pertinent agreement).
18. Y stresses that it has paid solidarity contribution to other clubs involved in the
player’s training and education taking into consideration the period of time and
amount originally claimed by X.
19. After the closure of the investigation into this matter, Y presented additional
statements and documentation in which it points out that X Clube has not yet
presented an invoice to the amount of EUR 18,750 that meets the international
accounting
requirements
and
that
in
the
absence
of
such
invoice/documentation it will be required to pay 50% taxes of the relevant
amount in accordance with the tax regulations of the country of Y
(documentation was presented by Y in this regard).
20. In addition, Y points out that the period of registration of the player at X does
not meet the duration of the player’s contract with X and it presents its own
version of such registration period resulting in a solidarity percentage of
20,55%, which represents the total amount of EUR 38,527 as opposed to the
EUR 39,056 claimed by X.
21. Y asks the Dispute Resolution Chamber to decide a) that X is only entitled to the
aforementioned EUR 18,750, which has been claimed by X for a long period of
time and which was already paid by Y; b) that the player passport issued by the
Football Federation of X is incorrect because it is not supported by the
3
employment contract; c) that in the light of its findings under number II.20
above X is not entitled to the additional amount of EUR 20,036 (which value
then allegedly should be EUR 19,777). Furthermore, irrespective of the final
amount due, X must issue the invoice or refund the 50% taxes to Y or FIFA
issues an invoice and Y pays directly to the “Association”.
22. In its final comments, X points out that clubs of the country of X, like X, are not
constituted as profit organisations and it is impossible to issue an invoice or
fiscal document as requested by Y. As regards the player passport, X asserts that
it is the only and valid document on which a formal decision shall be taken and
that any other document, like employment contracts, shall only serve as
complementary evidence.
23. As regards the 50% tax referred to by Y, it considers that Y should have made a
calculation of all costs related to the transfer transaction before entering into
such transaction instead of trying to transfer its duties to a third party.
24. Y trying divert FIFA’s attention to groundless issues in order to escape from its
obligations, X asks that the Dispute Resolution Chamber shall reprimand Y by
applying an interest rate of 10% p.a. over the amount payable to X.
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 formally submitted to FIFA on 23
June 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 to 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 combination with art. 22 (d) of the aforementioned
Regulations, the Dispute Resolution Chamber shall adjudicate on disputes
related to solidarity mechanism between clubs belonging to different
Associations.
4
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 X (hereinafter also referred to as the Claimant) in
connection with the transfer of the professional Z to Y (hereinafter also
referred to as the Respondent) during the course of a contract.
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 had been
registered for his new club on 2 August 2005. Equally, the Chamber took note
that the claim was lodged at FIFA on 23 June 2006. In view of the
aforementioned, the Chamber concluded that the current FIFA Regulations for
the Status and Transfers of Players (edition 2005, hereinafter: the Regulations) are
applicable to the case at hand as to the substance.
5.
Once its competence was thus established, the Chamber went on to deal with
the substance of the case. The members of the Chamber duly noted that the
Claimant initially claimed payment of solidarity contribution to the amount of
EUR 18,750, which amount was then increased to EUR 39,056 during the
investigation into the present matter, more specifically, after the Claimant had
been requested by FIFA to present a copy of the player passport issued by the
Football Federation of X in accordance with art. 7 of the Regulations.
6.
The members of the Chamber acknowledged that the Respondent had, in the
interim, paid the amount of EUR 18,750 as solidarity contribution to the
Claimant, receipt of which was confirmed by the latter. Moreover, and referring
to the increased amount of EUR 39,056, the Respondent refutes that the
Claimant is entitled to receive any further amount of solidarity contribution, in
particular in the light of the agreement that was signed between the clubs
concerned on 27 March 2006.
7.
The Chamber then took note of the said agreement dated 27 March 2006 and
signed by and between the clubs concerned, in accordance with which, in its
first clause, the parties agreed that Y owed solidarity contribution to the
amount of EUR 18,750 to X. In clause four of the relevant agreement X further
declared that there was nothing more to be received from Y in terms of the
solidarity contribution relating to the player, Z.
5
8.
The members of the Chamber agreed that in accordance with the fourth clause
of this agreement the Claimant unmistakably has nothing more to claim from
the Respondent with regard to the solidarity contribution relating to the player,
Z.
9.
In this regard, the Chamber considered that the Claimant should have known
how long it provided the player in question with training and education or
should have obtained the relevant information from the Football Federation of
X prior to signing the above-mentioned agreement with the Respondent.
10. Consequently, and taking into account that the Respondent has paid the
amount of EUR 18,750 to the Claimant, the Chamber decided that the
Respondent does not owe any further monies to the Claimant in connection
with solidarity contribution regarding the player, Z.
11. Therefore, the Chamber decided to reject the claim put forward by the
Claimant.
12. Equally, the Chamber decided to reject the Claimant’s request relating to a 10%
p.a. interest rate.
13. Furthermore, with respect to the Respondent’s counter-claim that the Claimant
shall provide it with a legal invoice or refund the 50% taxes to Y or FIFA issues
an invoice and Y pays directly to the “Association”, the Chamber considered
that the present decision might possibly serve as a confirmation for the relevant
tax authorities.
14. Therefore, the Chamber decided to reject the counter-claim presented by Y.
III. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, X, is rejected.
2.
The counter-claim of the Respondent, Y, is rejected.
3.
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,
6
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
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:
Urs Linsi
General Secretary
Enclosed: CAS directives
7