Solidarity Contribution
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 19 February 2009,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Philippe Piat (France), member
Mick McGuire (England), member
Mario Gallavotti (Italy), member
Reinhard Rauball (Germany), member
on the claim presented by the
B Football Federation,
as Claimant
against the club
J,
as Respondent
I.
regarding the solidarity contribution related to the
transfer of the player A
Facts of the case
1.
The player, A (hereinafter: the player), was born on 19 July 1973.
2.
The player passport issued by the B Football Federation (hereinafter: the Claimant),
indicates the following:
-
1 January 1985 to 11 January 1993
12 January 1993 to 17 May 1994
18 May to 31 December 1994
1 January to 31 January 1995
1 February to 9 August 1995
=> No record found
=> M Clube
=> A Clube
=> No record found
=> Y Clube
3.
The B sportive season follows the calendar year and runs from January to December.
4.
According to the confirmation of the T Football Federation, the player was registered
on 29 July 2005 for its affiliated club, J (hereinafter: the Respondent).
5.
On 26 July 2007, the Claimant lodged a formal complaint at FIFA requesting that the
Respondent proceed with the payment of the 61.15% of the proportion of 5% of the
solidarity contribution related with the transfer of the player, in the total amount of EUR
107,012.50. The Claimant stated that in July 2005, the player was allegedly transferred
from the club, FC S, to the Respondent, and that the transfer amount had been
disclosed by non-official media sources as EUR 3,500,000.
6.
The Claimant based its claimed right to receive the above-mentioned amount on the
fact that the players’ career could not be linked to any club for the period
comprehended between the season of 1985 (season of his 12th birthday) and 12
January 1993 (season of his 20th birthday) and between 1 and 31 January 1995
(season of his 22nd birthday).
7.
On 3 March 2008, upon FIFA’s request, the Respondent presented its position on the
matter rejecting the Claimant’s claim. The Respondent stated that: “in order to be
entitled to request solidarity contribution as a national association B Football
Federation has to prove, (i) that the player was trained during the given period, (ii)
by one of its affiliated clubs and (iii) the link between this club and the player cannot
be established”. According to the Respondent, the Claimant cannot prove or even
tried to prove any one of these points. Equally, the Respondent, by means of the
relevant transfer contract, provided evidence that the player was transferred to it
from FC S for a transfer fee of EUR 3,000,000.
8.
In its reply dated 20 March 2008, the Claimant stated that in B, most players start their
careers in clubs of their neighbourhood, schools, i.e. clubs which are not affiliated to
the Claimant. The Claimant asserted that the player had for sure been trained and
educated by a club, however, by a club or a kind of “football school” which is not
affiliated to the Claimant and which is therefore not entitled to claim solidarity
contribution, even though those clubs develop a crucial task in B football. Therefore,
the Claimant is of the opinion that the national associations are entitled to claim the
solidarity contribution on behalf of such non-affiliated entities.
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9.
Furthermore, the Claimant put forward that it only needed to demonstrate that no
link could be established between the player and any club and that it did not have to
prove that the player had actually been trained by a club.
10. On 14 April 2008, the Respondent again rejected the Claimant’s claim and stated that it (the
Claimant) is not providing proof that the player was trained by one of its affiliated clubs
during the missing years. Furthermore, the Respondent manifests that the Claimant
confirms that the player was not trained by one of its affiliated clubs, meaning that
this statement by the Claimant confirms that “there is no evidence that the player
was trained in B during the missing period”.
11. On 23 April and 21 May 2008, for the sake of completeness of the file, FIFA invited
the Claimant to elaborate on what the player was doing during the period
comprehended between the season of 1985 and 12 January 1993 and between 1 and
31 January 1995 and to provide evidence that the player was in fact trained in B
during this period. The Claimant gave the same arguments as before (cf. point I. 8 above),
and stated that “it is not possible for the B Football Federation to determine exactly where
the player was trained and educated during the missing years”.
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 took note that the present matter was
submitted to FIFA on 26 July 2007. Consequently, the Rules Governing the Procedures of
the Players’ Status Committee and the Dispute Resolution Chamber (edition 2005;
hereinafter: the 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, the B
Football Federation, in connection with the transfer of the professional player, A, during the
course of a contract.
3.
Furthermore, and taking into consideration that the player was registered with his new club,
the Respondent, on 29 July 2005, 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
July 2007, the previous edition of the regulations (edition 2005; hereinafter: the
Regulations) is applicable to the matter at hand as to the substance.
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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 Claimant requested its proportion of the solidarity
contribution in connection with the transfer of the player from the club, FC S, to the
Respondent in July 2005.
5.
First and foremost, the Chamber took note that the Claimant requests the amount of EUR
107,012.50 as solidarity contribution based on the fact that no link could be established
between the player and any club for the period comprehended between 1 January 1985
(season of his 12th birthday) and 11 January 1993 (season of his 20th birthday) and
between 1 and 31 January 1995 (season of his 22th birthday).
6.
In this regard, the Chamber emphasised that as established in art. 21 of the Regulations in
connection with Annex 5 of the Regulations, as a general rule the new club of the player
has to distribute as a solidarity contribution 5% of any compensation paid to the previous
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 club(s) between the
seasons of his 12th and 23rd birthdays.
7.
However, the Chamber underlined that in the present case, it was the B Football Federation,
i.e. an association, and not a club, which claimed the payment of the relevant solidarity
contribution. Therefore, it had in particular to analyse whether the conditions set forth in
art. 2 par. 3 of Annex 5 of the Regulations were fulfilled.
8.
The Chamber recapitulated that the aforementioned provision stipulates that if a link
between a professional and any of the clubs that trained him cannot be established within
18 months of his transfer, the solidarity contribution shall be paid to the association(s) of
the country where the professional was trained.
9.
On this basis, the Chamber pointed out that, at first, it had to analyse whether the time
frame of 18 months for the possible establishment of a link between a professional player
and a club had already elapsed after the transfer of the player to the Respondent, which
was a prerequisite contained in art. 2 par. 3 of Annex 5 of the Regulations.
10.
To that regard, the members of the Chamber stated that the transfer of the player from the
club, FC S, to the Respondent had apparently taken place in July 2005. Furthermore, the
Chamber referred to art. 2 par. 1 of Annex 5 of the Regulations, which stipulates that the
solidarity contribution to the training club(s) should be paid by the new club no later than
30 days after the player’s registration, which was, in casu, on 29 July 2005.
11.
In view of the aforementioned, the Chamber took note that the required time frame of 18
months for the possible establishment of a link between the player and a training club had
elapsed and that therefore, the Claimant was, in principle, entitled to claim the relevant
proportion of the 5% pertaining to the solidarity contribution.
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12.
In continuation, the Chamber took note of the fact that, in support of its claim, the
Claimant had submitted a copy of the player passport according to which between the
period from 1 January 1985 and 11 January 1993 and 1 and 31 January 1995, no record
could be found with regard to the registration of the player.
13.
Consequently, the members of the Chamber acknowledged that as asserted by the
Claimant, no link could be established between the player and any of the clubs affiliated to
the Claimant that allegedly trained him during the aforementioned period.
14.
In this context, the Chamber duly considered the arguments of the Claimant. In particular,
the Chamber took note that the Claimant argued that the player had for sure been trained
and educated by a club, however, by a club or a kind of “football school” which is not
affiliated to the Claimant and which is therefore not entitled to claim solidarity contribution,
even though those clubs perform a crucial task in B football. Equally, the Chamber observed
that according to the Claimant an association had only to prove that none of its affiliated
clubs was entitled to claim the solidarity contribution, i.e. that no link could be established
between a player and a club. However, it was not necessary to prove that a player had
actually been trained and educated by a club.
15.
To that regard, the Chamber deemed it appropriate to refer to art. 2 par. 3 of Annex 5 of
the Regulations according to which the solidarity contribution shall be paid to the
association of the country where the professional was trained “[i]f a link between the
Professional and any of the clubs that trained him cannot be established within 18 months
of his transfer …” (emphasis added).
16.
On the basis of the aforementioned wording, the members of the Chamber were eager to
emphasise that the Regulations clearly and unambiguously request for the player to have
been trained in football during the period of time in which no link between the professional
player and any of the clubs that trained him can be established. Only such understanding
can properly reflect the aim and ratio of the solidarity mechanism which is to reward the
clubs investing in the football training and education of young players. In other words, if
prior to enter into football a player practised no sport at all or another sport, that training
cannot be compensated within the football structures.
17.
Moreover, the Chamber deemed it equally important to stress that the aforementioned
provision of the Regulations (cf. point II., 15. above) explicitly and beyond any doubts
mentions that, under the required circumstances, “solidarity contribution shall be paid to
the association(s) … where the Professional was trained …” (emphasis added). Also the
norm in question clearly refers to clubs that trained him (the player).
18.
Consequently, it is indeed a clear requirement established by the provision in question that
evidence for the player’s football training in the country of the association concerned has to
be provided by the Claimant. Without such evidence, one of the essential prerequisites
listed in art. 2 par. 3 of Annex 5 of the Regulations is not fulfilled, which, according to the
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Chamber, must undoubtedly result in the dismissal of any claim of the association
concerned for solidarity contribution.
19.
Alleged not further specified or corroborated “training” in a possibly specific environment
yet falling outside the well-defined structures of organised football cannot be considered as
sufficient evidence in that regard. In this respect, for the sake of good order, the Chamber
was eager to emphasise that the Claimant had not even provided any kind of evidence for
such “training” to have been provided to the player.
20.
As a result, the Chamber unanimously concluded that, contrary to the Claimant’s position,
it is an association’s responsibility not only to demonstrate that no link could be established
between a professional and a club but also to give evidence for the player to have actually
been trained in football by a club during the relevant period of time, if it intends to claim
part of the solidarity contribution.
21.
Therefore, if there are no records found with regard to the registration of the player and no
evidences are provided that the player was clearly trained in football by a club during the
relevant period of time, the new club of the player is not obliged to pay any solidarity
contribution for the period where no records were found.
22.
As a consequence, the Chamber stressed that in the case at hand the Claimant had failed to
provide FIFA with adequate documentary evidence which would have clearly indicated that
the player was indeed trained in football by any club during the period in which no records
regarding his registration could be found.
23.
On the basis of all these considerations, the Dispute Resolution Chamber unanimously
concluded that its recent jurisprudence must be confirmed and therefore, the claim of the
Claimant for the solidarity contribution for the period from 1 January 1985 and 11 January
1993 and 1 and 31 January 1995 must be rejected.
III.
Decision of the Dispute Resolution Chamber
The claim of the Claimant, the B Football Federation, is rejected.
*****
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.
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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
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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