Solidarity Contribution
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 28 March 2008,
in the following composition:
ALOULOU Slim (Tunisia), Chairman
MC GUIRE Mick (England), member
GALLAVOTTI Mario (Italy), member
MARTORELLI Rinaldo (Brazil), member
SALEH AL HOUSANI Essa M. (United Arab Emirates), member
on the claim presented by the club
AAA, Xxx,
as Claimant
against the club
BBB, Xxx,
as Respondent
regarding the solidarity contribution for the transfer of the player
DDD
I.
Facts of the case
1.
According to the official confirmation of the Xxx Football Federation the Xxx
player, DDD (hereinafter: the player), born on 15 July 1976, was registered for
the Xxx club, AAA (hereinafter: the Claimant), from 10 September 1993 until 30
June 1994, from 2 until 9 September 1994, from 1 September until 27 October
1995 and from 12 January 1996 until 30 June 1997.
2.
On 5 August 2004, the player was transferred from the Xxx club, CCC, to the Xxx
club, BBB (hereinafter: the Respondent), for a transfer compensation in the
amount of EUR 3,500,000, payable in one instalment of EUR 1,000,000, on 9
August 2004, and four equal instalments of EUR 625,000, the first one on 31
January 2005, the second one on 31 August 2005, the third one on 31 January
2006 and the fourth one on 31 August 2006.
3.
On 13 August 2004, the player was registered at the Xxx Football Federation for
its affiliated club, the Respondent.
4.
On 30 May 2006, the Claimant lodged a claim at FIFA against the Respondent
claiming the amount of EUR 52,280 as solidarity contribution plus default
interest at a rate of 5% as from the moment on which the payment fell due.
5.
In its response, based on the confirmation of the player’s career history
meanwhile provided by the Xxx Football Federation, the Respondent agreed to
pay the amount of EUR 42,718 to the Claimant.
6.
In continuation, the Claimant acknowledged that only the amount of EUR 42,718
was due as solidarity contribution.
7.
Subsequently, the Claimant communicated that the Respondent had still not
made the relevant payment in spite of having made assurances that it would do
so. For this reason, the Claimant requested that the matter should be submitted
to the Dispute Resolution Chamber for a formal decision.
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 30 May 2006. Consequently, the Rules
Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber (edition 2005; 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
Solidarity contribution for the transfer of the player DDD
(Club AAA, Xxx / Club BBB, Xxx)
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distribution of the solidarity contribution claimed by the Claimant in connection
with the transfer of the professional player, DDD, during the course of a
contract.
3.
Furthermore, and taking into consideration that the player was registered with
his new club on 13 August 2004, 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 2001 edition of the regulations
(hereinafter: the 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 acknowledging that the Claimant originally
claimed the amount of EUR 52,280 as solidarity contribution plus default interest
at a rate of 5% as from the moment on which the payment fell due.
5.
In this regard, the Chamber took note that, in the meantime the Respondent had
agreed to pay the amount of EUR 42,718 as solidarity contribution to the
Claimant. Furthermore, the Chamber noted that the Claimant had accepted this
amount as being the one due as solidarity contribution.
6.
As a result of the above, the Chamber concluded that with regard to the
entitlement of the Claimant to receive solidarity contribution as well as to the
amount payable as solidarity contribution, an agreement had been reached
between the parties involved. In this respect, the Chamber continued that, in
accordance with the documentation on file, the Claimant had trained the player
during two years and six months between the ages 12 – 23 and was therefore
entitled to receive solidarity contribution.
7.
However, the Chamber acknowledged that no payment had been made by the
Respondent despite its assurances that it would do so. Thus, the Chamber
decided that the Claimant is entitled to receive solidarity contribution in the
amount of EUR 42,718 as agreed between the parties.
8.
Moreover, in view of the fact that the Claimant, according to its final statement,
requested a formal decision to be taken by the Dispute Resolution Chamber in
the present matter due to the Respondent’s non-fulfilment, the Chamber
established that the Claimant’s principal claim, regarding default interest a rate
of 5% as from the day on which the payment of the solidarity contribution had
fallen due, remains disputed.
9.
In this respect, the Chamber, first and foremost, went on to examine whether
the applicable Regulations contain explicit provisions, based on which the
Claimant could be awarded default interest.
10.
In this regard, the Chamber acknowledged that the Regulations do not foresee
any provision stipulating, per se, the right for the Claimant to receive default
Solidarity contribution for the transfer of the player DDD
(Club AAA, Xxx / Club BBB, Xxx)
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interest for a possible late payment of the solidarity contribution. Indeed, the
pertinent articles, in particular, art. 25 par. 2 of the Regulations in connection
with art. 11 par. 3 of the Regulations governing the Application of the
Regulations for the Status and Transfer of Players, stipulate explicitly that the
Dispute Resolution Chamber may impose disciplinary measures on clubs that do
not observe the obligations regarding the payment procedure of the solidarity
contribution as set out in art. 11 par. 1 and 2 of the Application Regulations.
11.
In view of the above, the Chamber concluded that the entitlement to receive
default interest in connection with the solidarity mechanism cannot be derived
from the Regulations, but that the Regulations left the decision whether to
award default interest related to the payment of the solidarity contribution to
the competent body’s discretion. Furthermore, the Chamber referred to its
jurisprudence relating to the Solidarity Mechanism under the 2001 Regulations,
in accordance with which default interest can be awarded.
12.
In continuation, the Chamber recalled that the Claimant’s claim for the agreed
amount due as solidarity contribution, which would constitute the basis for a
possible award of default interest within the scope of the deciding authority’s
discretion, had still not been settled by the Respondent.
13.
On account of the above, and taking also into consideration that the Respondent
finally lacked the goodwill to comply with its obligation to make the relevant
payment and therefore a decision with regard to the Claimant’s claim for the
payment of solidarity contribution as to the substance had to be taken, the
Chamber reached the conclusion that there was valid reason to award the
Claimant default interest.
14.
In this regard, the Chamber decided that the Claimant should be awarded
default interest at a rate of 5% per year. In this regard, the Chamber once more
referred to its jurisprudence relating to Solidarity Mechanism under the 2001
Regulations, in accordance with which, in case of transfer compensation paid in
instalments, the solidarity contribution relating to each instalment shall be paid
within 30 days of the due date of each instalment. As a consequence, the
Chamber decided that the Respondent has to pay 5% interest per year on the
respective partial solidarity contribution amounts, starting on the day following
the due date of the partial solidarity contribution payment (i.e. 30 days after the
due date of each instalment as per the transfer agreement) and applicable until
the effective date of payment to the Claimant.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, AAA, is partially accepted.
2.
The Respondent, BBB, must pay to the Claimant, AAA, the amount of USD 42,718
plus default interest at a rate of 5% per year as from the due dates of the
respective solidarity contribution contingent payments until the date of the
Solidarity contribution for the transfer of the player DDD
(Club AAA, Xxx / Club BBB, Xxx)
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effective payment, within 30 days as from the date of notification of this
decision.
3.
In the event that the above-mentioned amount is not paid within the stated
deadline, the present matter shall be submitted, upon request, to FIFA’s
Disciplinary Committee, so that the necessary disciplinary sanctions may be
imposed.
4.
Any further claim of the Claimant, AAA, is rejected.
5.
The Claimant, AAA, is instructed to inform the Respondent, BBB, 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.
***
Note relating to the motivated decision (legal remedy):
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, 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
Solidarity contribution for the transfer of the player DDD
(Club AAA, Xxx / Club BBB, Xxx)
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