Solidarity Contribution
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 28 March 2008,
in the following composition:
Slim Aloulou (Tunisia), President
Mick McGuire (England), member
Mario Gallavotti (Italy), member
Rinaldo Martorelli (Brazil), member
Essa M. Saleh Al-Housani (U.A.E.), member
on a matter between the club
A, xxxx
represented by xxxxx
and the club
G, xxxxx
represented by xxxxx
and the club
B, xxxxx
represented by xxxxxx
as Intervening party
regarding the solidarity contribution related to the
transfer of the player M.
I.
Facts of the case
1.
The Football Federation xxxx confirmed that the player M (hereinafter; the
player), born on 26 March 1982, was trained by the club A from 14 September
1994 to 30 June 1997.
2.
On 17 November 1997, the player was transferred from A to the club B. Thereby,
the two clubs agreed that in case the player would be transferred from B to a
third club, A is entitled to receive 10% of the respective amount received by B for
the transfer of the player.
3.
On 11 March 2002, the player was transferred from B to the club G. According to
the relevant contract G had to pay to B EUR 3,015,182 on 1 July 2002, and EUR
3,000,000. on 1 July 2003 as well as EUR 3,000,000 on 1 July 2004.
4.
Inter alia, the relevant transfer agreement contained the following clause:
“xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx.”
“xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx.”
5.
On 5 December 2003, A filed a claim to FIFA against G for solidarity contribution.
6.
On 19 July 2004, A was informally informed by FIFA that the claim at stake could
be an internal matter between two clubs, therefore falling under the jurisdiction
of the Football Federation of xxxxxx.
7.
In consequence, A filed the respective claim to the Football Federation of xxxxxx,
which, however, decided on 2 September 2005 that it is not competent to decide
on the matter at stake.
8.
The decision of the Football Federation of xxxxxx was appealed by A before the
Court of Arbitration for Sport (CAS). However, before a decision was passed by the
CAS in the matter, A withdrew its appeal, and the procedure was therefore
terminated on 23 September 2005.
9.
As a result to the above, on 22 September 2005, A reiterated the claim at stake
before FIFA, and thereby first of all named as a Respondent, besides G, also B. A
maintained that an amount of EUR 9,015,000 was agreed as transfer
compensation for the player and requested the amount of EUR 97,249, plus
default interest to 5%, from 1 May 2002 to 31 December 2005. As a result, A
claims the amount of EUR 114,012.17.
10.
Moreover, A emphasised that the contents of clause 7.1 of the transfer agreement
between B and G cannot have any influence on A, as the latter was not a party to
the relevant transfer agreement.
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11.
On 25 October 2005, G pointed out that in view of clause 7.1 of the transfer
agreement between B and G, it had paid to B 100% of the agreed transfer
compensation, without withholding the 5% of solidarity contribution to be
distributed.
12.
In continuation, G referred to FIFA’s letter dated 19 July 2004, and emphasised
that the issue at stake would be a res iudicata and the matter should not be reexamined by FIFA.
13.
G requests that B shall be obliged to pay the requisite sums to A.
14.
Subsidiary, G requests that, in case it should be condemned to any payment
towards A, it shall be indemnified by B in full.
15.
On 1 February 2006, B explained that in accordance with the sell-on-clause
contained in the transfer agreement signed between A and B in November 1997,
the latter paid to A 10%, i.e. EUR 901,518.02 of the transfer compensation it
received for the subsequent transfer of the player to G. B has though complied
with all its obligations towards A.
16.
B referred to FIFA’s letter dated 19 July 2004 and maintained that the matter at
stake would be a res iudicata.
17.
Furthermore, B invoked that the time between the transfer of the player to G on
11 March 2002 and A’s initial claim on 6 December 2003 (not 5 December) added
to the time between FIFA’s letter dated 19 July 2004 and A’s reiterated claim on 22
September 2005 results to more than two years. As the deadline of forfeiture in
accordance with the applicable Regulations of FIFA continued to run after FIFA’s
letter dated 19 July 2004, A’s claim is forfeited.
18.
Equally, B explained that A’s claim should be directed against G only, and not
against B.
19.
In addition, B maintained that the Regulations 2001 are not applicable on the
matter at hand, since they were not in force when the player was transferred from
A to B on 17 November 1997.
20.
Moreover, the Regulations of FIFA for the Status and Transfer of Players, in their
editions 1997, 2001 and 2005, are all not applicable, as the matter at hand
concerns two clubs affiliated to the same Association.
21.
In 1997, when A and B agreed on the transfer of the player, the system of
solidarity contribution did not yet exist. Therefore, they agreed upon a sell-onclause of 10%, in order for A to be remunerated for the training of the player. B
explained that if the solidarity mechanism would have existed already in 1997, it
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would never have accepted the said sell-on-clause. Thus, if A’s present claim would
be accepted, A would twice participate to the transfer of the player to G. Thus, B is
of the opinion that based on the sell-on-clause, A has received much more than it
mathematically would receive on account of solidarity contribution.
22.
Finally, B also entirely contested the claim for interest, as according to national
law, interest has to be paid only as of a decision taken by the first instance
deciding on a financial dispute.
23.
In view of the above, B requested that FIFA does not enter into the present
dispute due to prescription. Subsidiary, B requests that A’s claim be rejected
considering the arguments provided by B.
24.
On 17 May 2006, A emphasises that its claim is not based on the transfer of the
player to B, but on his international transfer from B to G.
25.
A furthermore underlined that the amount received on account of the sell-onclause is not to be confused with its proportion of solidarity contribution, for
which it is presently claiming. These two entitlements have a totally different legal
basis and are independent from each other. As a result, A reiterates its claim for
solidarity contribution plus default interest.
26.
Both, G and B referred to their previous positions and submissions.
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 took note that the present matter was submitted
to FIFA on 5 December 2003 as a consequence the Chamber concluded that the
previous Procedural Rules (edition 2001) on matters pending before the decisionmaking bodies of FIFA are applicable on the matter at hand. Thus, in principle, it
falls within the purview of the Dispute Resolution Chamber to review disputes
concerning the distribution of the solidarity contribution.
2.
Subsequently, the Chamber referred to the argument of G and B that the present
claim should be deemed inadmissible due to the principle of res iudicata and due
to prescription.
3.
In this respect and with regard to alleged inadmissibility of the present claim due
to the principle of res iudicata, the Chamber emphasized that based on all
documents submitted by all parties it cannot be concluded that a final decision has
already been taken as to the substance of the present matter by a competent
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decision-making body regarding the solidarity contribution in connection with the
international transfer of the player concerned from B to R.
4.
In particular, the Chamber considered that neither the correspondence of FIFA
dated 19 July 2004 nor the decision of the relevant Football Association dated 2
September 2005 referred as to the substance of the matter at stake, but to the
competence to deal with the present dispute with regard to the solidarity
contribution.
5.
In this respect, the Chamber pointed out that A lodged its claim with FIFA in
December 2003, subsidiary lodged a claim with the relevant Football Association.
The latter’s competent decision-making body decided not to be competent to deal
with the matter at stake.
6.
As a result, the Chamber recalled that G and B were unable to prove that a final
decision with regard to the substance of the present matter has already been
taken by a competent decision-making body, which would result in the dismissal
of the present claim.
7.
With regard to the alleged prescription of the present matter, the Chamber
deemed it appropriate to recall that, in principle, it shall not address any dispute if
more than two years have elapsed since the facts leading to the dispute arose (cf.
art. 44 of the above-mentioned Procedural Rules in connection with art. 4 of the
Rules governing the practice and procedures of the Dispute Resolution Chamber
(edition 2002)).
8.
In this respect, the Chamber underlined that, on the one hand, the present claim
for solidarity contribution is based on the international transfer of the player from
B to G and the relevant payment of the agreed transfer compensation in
instalments, which took place in March 2002, respectively July 2002 until July 2004.
On the other hand, the relevant claim was initially lodged in December 2003 and
the present file and relevant procedure pertaining to the present dispute has
always remained open since no formal decision has been passed so far. Thus, not
more than two years have elapsed since the facts leading to the dispute arose
during the year 2002 and December 2003, when the claim was lodged. Equally, the
Chamber emphasized that neither two years have elapsed between A lodging its
claim with FIFA and referring the matter to the relevant Football Association,
respectively to CAS nor until the present claim was reiterated at FIFA.
9.
As a consequence, the Chamber concluded that the objections of G and B to the
competence of the deciding authority to deal with the matter have to be rejected.
10.
Therefore and considering that the present claim was lodged in December 2003,
the Chamber established that in accordance with art. 25 par. 2 of the FIFA
Regulations for the Status and Transfer of Players (edition 2001), it falls within the
purview of the Dispute Resolution Chamber to review the present dispute
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between clubs affiliated to different associations concerning the distribution of
the solidarity contribution.
11.
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 on the Status and Transfer of Players (edition 2008) and
acknowledged that the professional had been registered for his new club,
Rangers, in March 2002 and that the claim was lodged at FIFA in December 2003.
In view of the aforementioned, the Chamber concluded that the former FIFA
Regulations for the Status and Transfer of Players (edition 2001, hereafter: the
Regulations) are applicable on the case at hand as to the substance.
12.
In continuation, and entering into the substance of the matter, the members of
the Chamber started by acknowledging that, as established in the art. 25 par.1 of
the Regulations in connection with art. 11 par.1 of the Regulations governing the
Application of the Regulations for the Status and Transfer of Players (hereafter:
the Regulations governing the Application of the Regulations), the new club of
the player is to distribute 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 clubs between
the ages of 12 and 23.
13.
In this context, the Chamber duly noted that A maintained that an amount of EUR
9,015,000 was agreed as transfer compensation for the player and requested the
amount of EUR 97,249, plus default interest to 5%. As a result, A claims the
amount of EUR 114,012.17 as solidarity contribution plus default interest.
14.
In continuation, the Chamber duly noted that G, the player’s new club, asserts
having paid to B, the player’s previous club, 100% of the agreed transfer
compensation in accordance with clause 7.1 of the transfer agreement, without
withholding the 5% of solidarity contribution to be distributed. Thus, G requests
that B shall be obliged to pay the relevant sums to A. Subsidiary, G requests that,
in case it should be condemned to any payment towards A, it shall be indemnified
by B in full.
15.
Moreover, the Chamber acknowledged that B explained that in accordance with
the sell-on-clause contained in the transfer agreement signed between A and B in
November 1997, the latter paid to A 10%, i.e. EUR 901,518.02 of the transfer
compensation it received for the subsequent transfer of the player to G. Thus, B
deems that it has complied with all its obligations towards A. Furthermore, B is of
the opinion that the Regulations 2001 are not applicable on the matter at hand,
since they were not in force when the player was transferred from A to B, i.e. on
17 November 1997 and the revised Regulations for the Status and Transfer of
Players, in their edition 1997, 2001 and 2005, are all not applicable, as the matter
at hand concerns two clubs affiliated to the same Association.
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16.
Finally, B emphasized that in 1997, when A and B agreed on the transfer of the
player, the system of solidarity contribution did not yet exist. Therefore, they
agreed upon a sell-on-clause of 10%, in order for A to be remunerated for the
training of the player. If the aforementioned system of solidarity mechanism
would have existed already in 1997, B would never have accepted the said sell-onclause. Thus, if A’s present claim would be accepted, A would participate twice to
the transfer of the player to G.
17.
In this respect, the Chamber deemed it appropriate to recall, that the present
affair refers to the potential entitlement of A as training club to receive its
proportion of the solidarity contribution as provided for in the Regulations in
connection with the international transfer of the player from B to G in March
2002.
18.
Consequently, the Chamber underlined that it does not fall under its competence
to deal with any possible dispute arisen between A and B in connection with the
execution of the transfer agreement signed between the aforementioned two
parties in 1997.
19.
For the sake of completeness, the Chamber pointed out that the facts that give
rise to the claim of A as training club, i.e. the international transfer of the player
from B to G and his registration date, occurred in March 2002, thus after the
coming into force of art. 25 of the Regulations (edition 2001). As a consequence,
the Chamber stated that, as a matter of principle, no retrospective application of
the aforementioned provisions appears to be existent. The relevant rules are being
applied on a transfer that clearly took place after their coming into effect. The
Chamber was of the unanimous opinion that under such circumstances also those
clubs that trained a player prior to the coming into effect of the applicable
Regulations and the implementation of the principle of the solidarity mechanism,
have to be entitled to participate to such contribution. Any other approach would
constitute an illegitimate discrimination of certain training clubs and go against
the aim of encouraging training of young players.
20.
In view of all of the above and turning its attention to the present matter
regarding the distribution of the solidarity contribution due to the international
transfer of the player, the Chamber considered that G omitted to deduct the
relevant proportion of solidarity contribution from the agreed transfer
compensation in order to distribute it between the club(s) that trained the player.
21.
As a result, the Chamber 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. 11 of the Regulations governing
the Application of the Regulations. At the same time, the player’s former club is
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ordered to reimburse the same proportion(s) of the 5% of the compensation that
it received from the player’s new club.
22.
The Chamber then referred to art. 10 of the Regulations governing the
Application of the Regulations, which provides the figures for the distribution of
the solidarity contribution, according to the time the player was effectively trained
by the clubs involved.
23.
In the present case, the Chamber outlined that according to the confirmation of
the relevant Football Association the player, born on 26 March 1982, was trained
by A from 14 September 1994 to 30 June 1997. In this respect, the Chamber
concluded that the period of effective training to be taken into account
corresponds to 2 seasons and 10 months.
24.
Therefore, the Chamber established that, in accordance with the breakdown
provided for in art. 10 of the Regulations governing the Application of the
Regulations, A is entitled to receive 19.2% of the 5% of the compensation paid in
relation to the transfer of the player from B to G.
25.
The Chamber noted that according to the documents on file, in particular the copy
of the relevant transfer agreement, the player was transferred for a total amount
of EUR 9,015,182 payable in three installments: EUR 3,015,182 payable on 1 July
2002, and EUR 3,000,000 payable on 1 July 2003 as well as payable on 1 July 2004.
26.
In view of the above, the Chamber decided that A is entitled to receive 19.2% of
5% of EUR 3,015,182, i.e. EUR 28,945, 19,2% of 5% of EUR 3,000,000, i.e. EUR
28,800 and 19,2% of 5% of EUR 3,000,000, i.e. EUR 28,800.
27.
In continuation, the Chamber referred to the A’s demand for default interest. In
this respect and with regard to the mode of payment, the members of the
Chamber referred to its well-established jurisprudence, according to which 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. It is in fact on the basis of
this jurisprudence that the revised Regulations (edition 2005 and 2008) explicitly
provide for this rule (cf. art. 2 par. 1 of Annexe 5 to both revised Regulations).
28.
In view of the above, the Chamber decided that G has to pay to A as solidarity
contribution EUR 28,945 plus 5% interest p.a. as from 31 July 2002, EUR 28,000
plus 5% interest p.a. as from 31 July 2003 and EUR 28,000 plus 5% interest p.a. as
from 31 July 2004, all applicable until the effective date of payment.
29.
Equally, the Chamber decided that B has to reimburse to G EUR 28,945 plus 5%
interest p.a. as from 31 July 2002, EUR 28,000 plus 5% interest p.a. as from 31 July
2003 and EUR 28,000 plus 5% interest p.a. as from 31 July 2004, all applicable until
the effective date of payment.
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III.
Decision of the Dispute Resolution Chamber
1.
The claim of A is partially accepted.
2.
G has to pay to A within 30 days as from the date of notification of this decision
the amount of EUR 28,945 plus 5% interest p.a. as from 31 July 2002, EUR 28,000
plus 5% interest p.a. as from 31 July 2003 and EUR 28,000 plus 5% interest p.a. as
from 31 July 2004, all applicable until the effective date of payment.
3.
If the aforementioned sum is not paid within the aforementioned deadline the
present matter shall be submitted upon request to FIFA’s Disciplinary Committee,
so that the necessary disciplinary sanctions may be imposed.
4.
A is directed to inform G 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.
5.
Any further claims of A are rejected.
6.
B has to pay to G within 30 days of notification of the present decision the
amount of EUR 28,945 plus 5% interest p.a. as from 31 July 2002, EUR 28,000 plus
5% interest p.a. as from 31 July 2003 and EUR 28,000 plus 5% interest p.a. as from
31 July 2004, all applicable until the effective date of payment.
7.
If the aforementioned sum is not paid within the aforementioned deadline the
present matter shall be submitted upon request to FIFA’s Disciplinary Committee,
so that the necessary disciplinary sanctions may be imposed.
8.
G is directed to inform B 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
9.
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).
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The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport (CAS)
Avenue de Beaumont 2
CH-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:
Markus Kattner
Deputy Secretary General
Encl.
CAS directives
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