Solidarity Contribution
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 11 March 2011,
by Mr Theo van Seggelen (Netherlands), DRC judge,
on a matter between the club
A,
and the club
B,
and the club
X,
as Intervening party
regarding a solidarity contribution dispute
related to the transfer of the player R
I.
Facts of the case
1.
The B Football Federation (BFF) confirmed that the player, R (hereinafter: the player),
born on 5 August 1980, was registered with its affiliated club, A (hereinafter: A),
from 23 March 1996 until 4 February 1999 as an amateur, from 5 February 1999 until
30 November 1999 as a professional, from 27 January 2000 until 31 December 2000 as
a professional, on 4 January 2001 as a professional and from 25 April 2001 until 6
August 2001 as a professional.
2.
The sporting season in country B follows the calendar year.
3.
The F Football Association (FFA) confirmed that the player was registered with club,
B (hereinafter: B), on 19 January 2007 as a professional.
4.
On 11 February 2008, the club A contacted FIFA asking for its proportion of the
solidarity contribution in connection with the transfer of the player from the Club X
(hereinafter: X), to the Club B, in January 2007.
5.
In particular, A requested 3% of the total transfer compensation, plus 5% interest
per year calculated as from the date of registration of the player.
6.
In its reply, B provided FIFA with the relevant transfer agreement, concluded
between B and X on 15 January 2007, regarding the transfer of the player. According
to art. 2 of the transfer agreement, the transfer compensation amounted to
EUR 360,000 payable in two instalments of EUR 180,000 each “in January 2007” and
“in September 2007”.
7.
Furthermore, B pointed out that, according to the transfer agreement, it was agreed
with X that the latter was obliged to pay the 5% solidarity contribution. In this
respect, B stated that the total transfer compensation including the 5% solidarity
contribution was transferred to X.
8.
Equally, B explained that it had paid a total amount of EUR 345,000 to X. However,
despite having been invited to do so, B did not provide FIFA with further comments
or evidence regarding this amount and the discrepancy to the amount stipulated in
the transfer agreement.
9.
Thereupon, A amended its claim to the amount of EUR 8,842.19, plus 5% interest per
year calculated as from the date of registration of the player.
10.
After FIFA had informed all clubs involved of the pertinent jurisprudence in similar
cases, X provided FIFA with its calculation of the relevant proportion of the 5%
solidarity contribution, based on a transfer compensation of EUR 360,000, and asked
B to send an invoice in the amount of EUR 7,764.66 in order to reimburse this
amount to B.
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11.
In this respect, A contested both B’s explanation regarding the alleged amount of
EUR 345,000 as well as the calculation made by X arguing that it contained several
mistakes.
12.
Likewise, A amended its claim to an amount of EUR 9,748.25.
13.
Thereupon, X acknowledged having made mistakes in its calculation, and it amended
it to the amount of EUR 8,501.92.
14.
With regard to the new amount calculated by X, Club A disapproved again, since the
sporting season in country B, according to A, started in January and not in August, as
wrongly calculated by X. Therefore, the period from 23 March until 5 August 1996,
during which the player was registered with A, was, according to the latter, the
season of the player’s 16th birthday and the percentage had to correspond to 0.5%,
instead of 0.25% of the overall transfer compensation.
15.
In its last position, B asserted that it was expecting from FIFA a definitive calculation
of the solidarity contribution, which should amount to either EUR 8,848.19,
EUR 8,501.92 or EUR 7,764.66.
II.
Considerations of the DRC judge
1.
First of all, the Dispute Resolution Chamber judge (hereinafter: the DRC judge)
analysed whether he was competent to deal with the case at hand. In this respect,
the DRC judge first referred to art. 21 par. 1 and 3 of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(edition 2008). The present matter was submitted to FIFA on 11 February 2008, thus
before the aforementioned Rules entered into force on 1 July 2008. Therefore, the
DRC judge concluded that the 2005 edition of the Rules Governing the Procedures of
the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the
Procedural Rules) is applicable to the matter at hand.
2.
Furthermore, the DRC judge analysed which edition of the Regulations on the Status
and Transfer of Players should be applicable as to the substance of the matter. In this
respect, the DRC judge referred, on the one hand, to art. 26 par. 1 and 2 in
connection with art. 29 of the Regulations on the Status and Transfer of Players
(edition 2010) and, on the other hand, to the fact that the present claim was lodged
on 11 February 2008 and that the player was registered for Club B on 19 January
2007. In view of the aforementioned, the DRC judge then referred to art. 26 par. 1
and 2 in connection with art. 29 of the Regulations on the Status and Transfer of
Players (editions 2005, 2008, 2009 and 2010) and concluded that the 2005 edition of
the Regulations for the Status and Transfer of Players (hereinafter: the Regulations) is
applicable to the matter at hand as to the substance.
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3.
Subsequently, the DRC judge referred to art. 3 par. 2 of the Procedural Rules, which
states that the jurisdiction of the DRC judge is set out in art. 24 par. 2 of the
Regulations. In accordance with art. 22 lit. d) and art. 24 par. 2 iii) of the Regulations,
the DRC judge concluded that he was competent to deal with a dispute regarding
solidarity contribution involving a club affiliated to the B Football Federation and a
club affiliated to the F Football Federation, with a club affiliated to the S Football
Federation (SFF) as Intervening Party.
4.
His competence and the applicable regulations having been established, the DRC
judge entered into the substance of the matter. The DRC judge started by
acknowledging the facts of the case as well as the documentation contained in the
file.
5.
In this respect, the DRC judge noted that it was undisputed between the parties that
the player had been transferred from Club X to Club B and that he was registered
with the latter on 19 January 2007. Equally, the DRC judge pointed out that the
relevant transfer agreement provided for a transfer compensation of EUR 360,000,
payable in two equal instalments of EUR 180,000 each, in January 2007 and
September 2007. Furthermore, the DRC judge recalled that B had firstly indicated a
transfer compensation of EUR 345,000, but that it subsequently did not corroborate
or further comment on this statement. Therefore, the DRC judge decided to base his
deliberations on the information contained in the transfer agreement.
6.
In continuation, the DRC judge duly noted that A requested the amount of
EUR 9,748.25 as solidarity contribution in connection with the aforementioned
transfer, plus 5% interest per year calculated as from the date of the registration of
the player.
7.
In continuation, the DRC judge recalled that, as established in art. 21 of the
Regulations in connection with Annex 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 be 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 birthday.
8.
In this respect, the DRC judge took due note that the B Football Federation
confirmed that the player R, born on 5 August 1980, was registered with A from 23
March 1996 until 30 November 1999, from 27 January 2000 until 31 December 2000,
on 4 January 2001 and from 25 April 2001 until 6 August 2001.
9.
In continuation, the DRC judge duly noted that B asserted having paid the entire
amount of EUR 360,000 agreed upon as transfer compensation, to X. In other words,
the DRC judge took note that B omitted to deduct 5% of the relevant transfer
compensation relating to the solidarity mechanism.
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10.
Equally, the DRC judge acknowledged that X eventually stated that it was willing to
reimburse the amount of EUR 8,501.92 to B.
11.
Subsequently, the DRC judge 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. 1 and 2 of the Annex 5 of the
Regulations. At the same time, in line with the aforementioned jurisprudence, 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.
12.
In view of the above, and in consideration of the above-stated jurisprudence, the
DRC judge decided that A is entitled to receive a proportion of the relevant transfer
compensation as solidarity contribution from B and that X must reimburse the same
proportion to B.
13.
Turning his attention to the calculation of the due proportion of solidarity
contribution, the DRC judge referred to art. 1 of Annex 5 of the Regulations, which
stipulates that the solidarity contribution reflects the number of years the player was
registered with the relevant club between the seasons of his 12th and 23rd birthdays,
calculated pro rata if less than one year, in accordance with the table contained in
the aforementioned provision.
14.
In this respect, the DRC judge concluded that the effective period of training to be
considered in the matter at stake corresponds to the information contained in the
player’s passport received from the B Football Federation, which displays that the
player was registered with A for the period from 23 March 1996 until 30 November
1999, from 27 January 2000 until 31 December 2000, on 4 January 2001 and from 25
April 2001 until 6 August 2001. In other words, the DRC judge established that the
player was registered for 9 months of the season 1996 in country B, for the 2 entire
seasons 1997 and 1998 in country B, for 11 months of the season 1999 in country B,
for 11 months of the season 2000 in country B and for 3 months of the season 2001 in
country B. Equally, the DRC judge noted that the aforementioned seasons correspond
to the seasons of the player’s 16th to 21st birthdays.
15.
In view of the foregoing, as well as considering the points II. 6, 8 and 14 above, the
DRC judge decided that A is entitled to receive from B the proportion of 48.32% of
5% of the transfer compensation paid for the player as solidarity contribution.
16.
As regards the interest claimed by A, the DRC judge emphasised that according to
art. 2 par. 1 of Annex 5 of the Regulations, the deadline for the payment of the
solidarity contribution is 30 days following the registration of the player with the
new association or, in case of contingent payments, 30 days after the date of such
payments.
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17.
Likewise, the DRC judge recalled that the relevant transfer agreement stipulated that
the transfer compensation for the player was to be paid in two equal instalments “in
January 2007” and “in September 2007”. Consequently, the DRC judge considered
that the aforementioned instalments were payable until the last day of the relevant
months, as indicated in the transfer agreement. Therefore, the DRC judge decided to
award interest as of the 31st day after the last day of the aforementioned months.
18.
Consequently and taking into account all the above-mentioned elements, the DRC
judge decided that the claim of A is partially accepted and that A is entitled to
receive solidarity contribution from B in the amount of EUR 8,697, plus 5% interest
per year as of 3 March 2007 over the amount of EUR 4,348.50 and 5% interest per
year as of 31 October 2007 over the amount of EUR 4,348.50. Equally, the DRC judge
decided that X must reimburse the amount of EUR 8,697 to B.
19.
The DRC judge concluded his deliberations by stating that any further claims of A are
rejected.
*****
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III.
Decision of the DRC judge
1.
The claim of Club A is partially accepted.
2.
B has to pay to A within 30 days as from the date of notification of this decision the
amount of EUR 8,697 plus 5% interest p.a. until the date of effective payment as
follows:
5% p.a. as of 3 March 2007 over the amount of EUR 4,348.50;
5% p.a. as of 31 October 2007 over the amount of EUR 4,348.50.
3.
If the aforementioned sum, plus interest, is not paid within the aforementioned
deadline, the present matter shall be submitted, upon request, to FIFA’s Disciplinary
Committee for consideration and a formal decision.
4.
Any further claim lodged by A is rejected.
5.
A is directed to inform B immediately and directly of the account number to which
the remittance is to be made and to notify the Dispute Resolution Chamber of every
payment received.
6.
Club X has to reimburse the amount of EUR 8,697 to B 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, upon request, to FIFA’s Disciplinary Committee for
consideration and a formal decision.
8.
B is directed to inform X immediately and directly of the account number to which
the remittance is to be made and to notify the Dispute Resolution Chamber of every
payment received.
*****
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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).
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 DRC judge
Jérôme Valcke
Secretary General
Encl.
CAS directives
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