Solidarity Contribution
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 15 February 2008,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Philippe Diallo (ZZ), Member
Mohamed Mecherara (Algeria), Member
Carlos Soto (Chile), Member
Philippe Piat (ZZ), Member
on a matter between,
X, XX,
represented by Mr Gonçalo Almeida, attorney at law
and,
Y, YY,
and,
Z, ZZ,
as “Intervening party”
regarding the solidarity contribution related to the transfer
of the player O.
I.
Facts of the case:
1.
According to the official confirmation received from the Football Federation of XX
dated 7 September 2006, the XXan player O, born on 18 May 1981, was registered
with the X (hereinafter: the Claimant) from August 1993 until August 1998.
2.
At the same time, the Football Federation of XX confirmed that the Claimant is
one of its affiliated clubs since 23 January 1993 and that its footballing season runs
from 1 October to 31 July of the following year.
3.
On 22 August 2006, the player in question was transferred from the ZZ club, Z
(hereinafter: the intervening party), to the YY club, Y (hereinafter: the
Respondent).
4.
The relevant transfer compensation agreed upon in the relevant transfer
agreement amounted to EUR 26,000,000 payable as follows:
- EUR 8,000,000 until 22 August 2006
- EUR 6,000,000 until 31 July 2007
- EUR 6,000,000 until 31 July 2008
- EUR 6,000,000 until 31 July 2009
5.
A copy of the transfer contract was remitted to the Dispute Resolution Chamber.
6.
Furthermore, it was agreed between the parties that a further payment of EUR
1,000,000 would be payable each time the Respondent wins the Champions
League during the seasons 2006/2007 until 2010/2011. However, the total
complementary compensation was limited to an amount of EUR 3,000,000.
7.
In addition to that, the two parties to the transfer contract agreed that the
intervening party would be responsible for the payment of the solidarity
contribution.
8.
On 16 October 2006, the Claimant lodged a formal claim in front of FIFA against
the Respondent, claiming the 5% payment established in the applicable FIFA
Regulations regarding the contribution to the solidarity mechanism related to the
transfer of the player O from the intervening party to the Respondent. The
Claimant requests payment in the amount of EUR 455,000, i.e. 35% of 5%, plus
interest since the date the payment was due. In addition, the Claimant asks that
solidarity payment would be due on the complementary amount in case the
conditions for the payment of any additional compensation payments were
fulfilled.
Solidarity Contribution for the player O
(Club X, XX / Z, ZZ / Y, YY)
2
9.
The Respondent informed that it had agreed with the intervening party that the
latter would assume the responsibility to pay the solidarity contribution to the
clubs that trained and educated the player in question.
10.
Furthermore, the Respondent emphasized that the intervening party had already
started with the payment of the solidarity contribution to other clubs in relation
to the transfer of the player in question from the intervening party to the
Respondent. The Respondent informed, however, that should the Dispute
Resolution Chamber decide that it must pay solidarity contribution to the
Claimant, the intervening party would need to reimburse the said amount as
agreed upon in the transfer agreement.
11.
The intervening party, by means of its correspondence dated 2 December 2007,
confirmed that it had agreed with the Respondent to assume the responsibility for
the payment of the solidarity contribution. However, it particularly put into
question the Claimant’s status as a club duly affiliated to the Football Federation
of XX and requested justifications in this regard.
12.
At a later stage during the proceedings, the intervening party informed that it
remains awaiting the procedure apparently initiated by the Claimant against it
before a civil court, following the decision of the Dispute Resolution Chamber on
28 February 2005. In the intervening party’s point of view and in accordance with
the applicable FIFA Regulations, a club affiliated to a member Association of FIFA
should refrain from submitting claims before civil courts.
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, it took note that the present matter
was submitted to FIFA on 16 October 2006. Consequently, the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 18 par.
2 and 3 of the Procedural Rules).
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
combination with art. 22 lit. (d) of the Regulations on the Status and Transfer of
Players (edition 2008) the Dispute Resolution Chamber is competent to decide on
the present litigation with an international dimension concerning the distribution
of the solidarity contribution claimed by the Claimant in connection with the
transfer of the professional O during the course of a contract.
Solidarity Contribution for the player O
(Club X, XX / Z, ZZ / Y, YY)
3
3.
Furthermore, and taking into consideration that the player was registered with his
new club in August 2006, 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) the previous version of the regulations (edition 2005;
hereinafter: Regulations) is 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 carefully studying the facts outlined above, which show
that the player in question was transferred from the intervening party to the
Respondent on a definitive basis in August 2006.
5.
The Chamber took note that to this end, a transfer agreement between the
intervening party and the Respondent had been signed for the definitive transfer
of the player O to the said Respondent. Furthermore, the members observed that
the total transfer compensation agreed between the aforementioned two parties
amounted to EUR 26,000,000 payable in four instalments. What is more, the
Chamber took note that complementary payments were agreed in case the
Respondent would win the Champions League during the seasons 2006/2007 until
2010/2011.
6.
In continuation, the Chamber acknowledged that the Claimant is requesting its
proportion of 5% of the amount paid by the Respondent to the intervening party
in connection with the transfer of the player O to the Respondent. In particular,
the Claimant requests the amount of EUR 455,000, i.e. 35% of 5% plus interest
since the date the payment of the solidarity contribution was due.
7.
At that point, the members of the Chamber observed the Respondent’s objection
towards the claim of the Claimant which is that it had agreed with the intervening
party in the relevant transfer agreement that the latter would assume the
payment of the solidarity contribution to the club(s) having trained and educated
the player in question. Moreover, the deciding authority noted the Respondent’s
further statements according to which, in case the Dispute Resolution Chamber
would find that it has to pay the relevant proportion of the solidarity contribution
to the Claimant, the intervening party would then have to reimburse the relevant
amounts.
8.
Subsequently, the Chamber took also note of the intervening party’s different
statements during the course of the present procedure. In particular, it was noted
by the deciding body that the intervening party questioned the Claimant’s status
as a club duly affiliated to the Football Federation of XX. What is more, the
Chamber particularly noted the intervening party’s confirmation that it had
Solidarity Contribution for the player O
(Club X, XX / Z, ZZ / Y, YY)
4
agreed with the Respondent in the relevant transfer agreement for the transfer of
the player concerned to assume the responsibility for the payment of the solidarity
contribution.
9.
As regards the intervening party’s doubts with regard to the status of the
Claimant, the Chamber referred to the official confirmation received from the
Football Federation of XX dated 21 December 2006 by means of which the latter
not only confirmed the registration of the player O with its club, i.e. the Claimant,
but also that the player regularly participated with the Claimant in the relevant
competitions of the Football Federation of XX and, as a consequence, that the
Claimant is one of its affiliated clubs, since January 1993. The deciding body
therefore decided to reject the intervening party’s objections in this respect.
10.
In continuation, the members of the Chamber took note of the intervening party’s
reference to a procedure allegedly initiated by the Claimant against the
intervening party before a civil court. In the intervening party’s point of view, such
stance prevents the Claimant from receiving any payments from the intervening
party.
11.
In this respect, the Chamber held that the intervening party could not corroborate
its above-stated allegations with documentary evidence, which is the reason why
the Chamber decided to reject the intervening party’s objection in this regard.
12.
At this point, the Chamber recalled that, as established in art. 21 in combination
with art. 1 of Annex 5 of the Regulations, the new club, to which a player moves
during the course of an employment contract with his previous club, is responsible
for the distribution of 5% of any compensation it paid to the player’s former club
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 birthdays.
13.
In view of the aforementioned, the Chamber clarified that, in the matter at stake,
a proportion of 5% of the compensation paid by the player’s new club, in casu the
Respondent, to his former club, in casu the intervening party, has to be deducted
(cf. clear wording of art. 1 of Annex 5 of the Regulations) from the total amount
of this compensation paid by the player’s new club in order to be distributed as a
solidarity contribution to the club(s) involved in the training and education of the
player concerned.
14.
In addition to the aforementioned, the deciding authority underlined that in view
of the clear wording of the aforementioned applicable provisions of the
Regulations, it is evidently not left at the discretion of the parties to change this
explicit rule established by the Regulations. Therefore, the parties to a transfer
Solidarity Contribution for the player O
(Club X, XX / Z, ZZ / Y, YY)
5
agreement have to strictly abide by the Regulations in terms of the party
responsible for the distribution of the solidarity contribution to the clubs having
trained and educated the player concerned. Moreover, the Chamber deemed it
important to clarify that besides the aforementioned, the Claimant’s rights cannot
be forgone by a contractual clause agreed between two other parties.
15.
The Chamber also held that this conclusion fully reflects 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
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.
16.
In view of all the above and in light of the aforementioned well-established
jurisprudence, the members of the Dispute Resolution Chamber concluded that it
is the responsibility of the new club, i.e. the Respondent, to pay the relevant
proportion of the solidarity contribution to the Claimant, which was involved in
the player’s training. Furthermore, and bearing in mind that the 5% solidarity
contribution is to be deducted from the amount payable to the player’s former
club, the intervening party will have to refund the same proportion to the
Respondent.
17.
After having established the Respondent’s obligation to distribute the relevant
proportion of the solidarity contribution to the Claimant, the Chamber went on to
deliberate on the proper calculation of the said proportion due to the Claimant.
18.
To that regard, the Chamber referred to art. 1 of the Annex 5 of the Regulations
which provides the figures for the distribution of the solidarity contribution,
according to the period of time the player was effectively trained by a specific club
and taking into consideration the age of the player at the time he was provided
with training and education by the club(s) concerned.
19.
In the present case, the Chamber outlined that according to the player passport
submitted by the Football Federation of XX, the period of training to be taken
into account is from August 1993 until August 1998, i.e. the time the player O had
been registered with the Claimant at the Football Federation of XX.
20.
In light of all the above, taking into account that according to the official
confirmation from the Football Federation of XX its football-season runs from 1
October to 31 July of the following year, the Chamber decided that the period of
training and education to be taken into account corresponds to a total of five
years and one month.
Solidarity Contribution for the player O
(Club X, XX / Z, ZZ / Y, YY)
6
21.
Therefore, the Chamber established that, in accordance with the breakdown
provided for in art. 1 of Annex 5 of the Regulations, the Claimant is basically
entitled to receive 35% of 5% of the transfer compensation paid by the
Respondent to the intervening party in relation to the transfer of the player O.
22.
In continuation, the deciding body recalled that, according to the relevant transfer
agreement in question, the Respondent and the intervening party agreed that the
transfer compensation for the transfer of the player in question is payable in
several instalments according to the following payment schedule:
-EUR 8,000,000
-EUR 6,000,000
-EUR 6,000,000
-EUR 6,000,000
until 22 August 2006;
until 31 July 2007;
until 31 July 2008;
until 31 July 2009.
23.
In this respect, the Chamber referred to art. 2 of the Annex 5 of the Regulations,
which establishes that in case of contingent payments, the new club shall pay the
solidarity contribution to the training club(s) 30 days after the date of such
payments.
24.
In conformity with the above-mentioned, the Respondent shall pay the solidarity
contribution 30 days after the date of each agreed payment.
25.
In view of the above, the members of the Chamber held that, at present, only the
first and second instalments of the transfer compensation in the amounts of EUR
8,000,000 and EUR 6,000,000 were due to be paid on 22 August 2006 and on 31
July 2007 respectively.
26.
As a result to the above, the Chamber concluded that the Respondent must pay to
the Claimant the amount of EUR 140,000 corresponding to 35% of the 5%
solidarity contribution on the 1st instalment (EUR 8,000,000) which was due on 22
August 2006 and the amount of EUR 105,000 corresponding to 35% of the 5 %
solidarity contribution on the 2nd instalment (EUR 6,000,000) which was due on 31
July 2007.
27.
The Chamber also concluded that, as explained above, the intervening party has to
reimburse the total amount of EUR 245,000, i.e. the amounts of EUR 140,000 and
EUR 105,000, to the Respondent.
28.
What is more, the deciding body reiterated that the Respondent should have paid
the Claimant the aforementioned amounts due as solidarity contribution at the
latest 30 days after the date of each contingent payment.
Solidarity Contribution for the player O
(Club X, XX / Z, ZZ / Y, YY)
7
29.
Consequently, in light of the fact that these payments are due since the thirty-first
day after the relevant contingent payments were agreed in the transfer
agreement at stake, the Chamber established that default interest payments of
5% p.a. on the amount of EUR 140,000 as from 22 September 2006 and on the
amount of EUR 105,000 as from 1 September 2007 must be applied.
30.
In this context, with regard to the third and fourth instalment as well as the
complementary payment agreed upon in the transfer agreement between the
intervening party and the Respondent for the transfer of the player O, the
deciding body stated that the Rules Governing the Procedures of the Players’
Status Committee and the Dispute Resolution Chamber do not foresee any
provisional measures in order to protect a party’s possible future right from a
potential non-fulfilment of the FIFA Regulations with regard to possible financial
entitlements.
31.
In view of the above, the deciding body stated that since those two instalments
and the complementary payment are not yet due or the condition for a payment
are not fulfilled, for the time being, it cannot assist the Claimant in recovering its
proportion to the solidarity contribution on those amounts. However, the
Chamber deemed it appropriate to state that, if need be, it would be able to assist
the Claimant at the earliest as soon as the right to receive any proportion of the
solidarity contribution has arisen, i.e. 30 days after the single contingent payments
will be due or the condition for a complementary payment are fulfilled. Finally,
the members of the Chamber deemed it appropriate to state that in such case it
would apply the same principles as exposed above as regards the mode of
payment and the calculation of the amount(s) due.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, X, is partially accepted.
2.
The Respondent, Y, has to pay the amount of EUR 140,000 to the Claimant, X,
within 30 days following the date of the notification of the present decision.
3.
On the aforementioned amount, a default interest payment of 5% p.a. as from 22
September 2006 until the date of the payment is applied.
4.
The Respondent, Y, has to pay the amount of EUR 105,000 to the Claimant, X,
within 30 days following the date of the notification of the present decision.
Solidarity Contribution for the player O
(Club X, XX / Z, ZZ / Y, YY)
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5.
On the aforementioned amount, a default interest payment of 5% p.a. as from 1
September 2007 until the date of the payment is applied.
6.
In the event that the above-mentioned amounts are not paid within the stated
deadline, the present matter shall be submitted to FIFA’s Disciplinary Committee,
so that the necessary disciplinary sanctions may be imposed.
7.
Any further claims lodged by the Claimant, X, are rejected.
8.
The Claimant, X, is directed to inform the Respondent, Y, directly and immediately
of the account number to which the remittances are to be made and to notify the
Dispute Resolution Chamber of every payment received.
9.
The intervening party, Z, has to reimburse the total amount amounts of EUR
245,000 to the Respondent, Y, within 30 days following the date of the
notification of the present decision.
10.
If the aforementioned sum is not paid within the aforementioned deadline, an
interest rate of 5% p.a. 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.
11.
The Respondent, 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.
12.
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:
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
Solidarity Contribution for the player O
(Club X, XX / Z, ZZ / Y, YY)
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e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Markus Kattner
Deputy Secretary General
Encl.
CAS directives
Solidarity Contribution for the player O
(Club X, XX / Z, ZZ / Y, YY)
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