Solidarity Contribution
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 13 June 2008,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Michele Colucci (Italy), member
Mick McGuire (England), member
Caio Cesar Vieira Rocha (Brazil), member
Zola Malvern Percival Majavu (South Africa), member
on the claim presented by the club
N
as Claimant
against the club,
FC S
as Respondent
regarding a solidarity mechanism dispute related to the
transfer of the player B.
./…
I.
Facts of the case
1.
According to a written statement of the Football Association of S, the player B,
born on 7 August 1986, was registered as professional player with the club N from
1 July 2004 to 28 July 2006.
2.
The player was transferred by the club N to the F club FC S and, according to the F
Football Federation, was registered as a professional with the mentioned club on
28 July 2006. A compensation of EUR 1,300,000 was agreed upon. Clause 2.2 of the
transfer agreement includes the following passage: “The Parties agree that the
consideration mentioned under 2.1 above [i.e. EUR 1,300,000], do not cover all
possible claims by third parties to which FC S may be obliged to regarding the
transfer of the Player from N to FC S, namely and training and/or solidarity
compensation arising out of the FIFA Regulations for the Status and Transfer of
Players….”.
3.
On 13 September 2006, N contacted FIFA to claim a solidarity contribution in the
amount of EUR 19,500 (3 years x 10% of 5% of EUR 1,300,000) from FC S for the
training and education of the said player.
4.
FC S rejected club N’s claim stating that the transfer agreement entered into by
the parties contains no mention of N having a claim to any payments other than
the agreed EUR 1,300,000. Pursuant to the transfer agreement, the transfer
compensation in the amount of EUR 1,300,000 also covered the solidarity
contribution and the training compensation owing to the club N. Only the
solidarity contributions and/or training compensation fees owing to third parties
were not included in the EUR 1,300,000.
5.
N responded to FC S’s allegations by pointing out that the transfer compensation
agreed in the transfer agreement entered into with FC S did not include the
solidarity contribution to which it is entitled. According to the club N, this transfer
compensation merely represented the compensation for the premature dissolution
of the contract of employment entered into by the player and N.
6.
N also submits that no provision of the Regulations or any other document
provides for the solidarity contribution and/or the training compensation being
settled by way of the transfer compensation.
7.
FC S did not present any further statement.
Solidarity mechanism relating to the player B
(Club N / Club FC S)
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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 13 September 2006. Consequently, the 2005 edition of
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 and 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 claimed by the
club N for the training and education of the player B.
3.
Furthermore, and taking into consideration that the player was registered with his
new club on 28 July 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), and considering that the present claim was lodged on 13
September 2006, 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 acknowledging the facts of the case as well as the
documentation contained in the file.
5.
First of all, the Chamber stated that, as established in art. 21 in combination with
art. 1 of 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 distributed by the new club as a solidarity contribution to the club(s) involved
in his training and education over the years.
6.
The Chamber recalled that the player was born on 7 August 1986 and registered
with the club N as from 1 July 2004 to 28 July 2006. Moreover, the player was
transferred by the club N to FC S on the occasion of which the parties signed a
transfer agreement in accordance with which a compensation of EUR 1,300,000
was agreed upon. Clause 2.2 of the transfer agreement includes the following
Solidarity mechanism relating to the player B
(Club N / Club FC S)
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passage: “The Parties agree that the consideration mentioned under 2.1 above
[i.e. EUR 1,300,000], do not cover all possible claims by third parties to which FC S
may be obliged to regarding the transfer of the Player from N to FC S, namely and
training and/or solidarity compensation arising out of the FIFA Regulations for the
Status and Transfer of Players….”).
7.
Furthermore, the Chamber stated that N claims a solidarity contribution in the
amount of EUR 19,500 from FC S in connection with the aforementioned transfer
of the player for the training period from 1 July 2004 to 28 July 2006.
8.
In view of the above, the Chamber stated that in accordance with art. 1 of Annex
5 of the Regulations, N is entitled to receive 95% of the total amount of the
transfer compensation agreed upon with FC S for the transfer of the player B and
the remaining 5% shall be distributed as solidarity contribution to the club(s)
involved in his training and education over the years, including N which was
uncontestedly involved in the training and education of the player, however only
for the respective effective training period.
9.
In the present case, as no amount was deducted from the EUR 1,300,000 agreed
upon between FC S to N for the transfer of the player, the Chamber considered
that N already received 100% of the total transfer compensation agreed upon for
the transfer of the player, meaning that it also received 100% of the 5% of the
solidarity contribution that is to be distributed to clubs involved in his training and
education.
10.
Based on all of the above, the Chamber considered that N has already received
the solidarity contribution relating to the relevant transfer of the player B and
possibly received more than it is entitled to, should there be other clubs that
contributed to the training and educating of the player.
11.
The Chamber also took into account that, according to the above-mentioned
clause 2.2 of the transfer agreement, the parties clearly stipulated that only third
parties could possibly claim a solidarity compensation from FC S.
12.
Consequently, the members of the Chamber unanimously decided to reject the
present claim.
13.
On account of all the foregoing considerations, the Chamber decided that the club
N is not entitled to receive any solidarity contribution from FC S for the training
and education of the player B.
III.
Decision of the Dispute Resolution Chamber
Solidarity mechanism relating to the player B
(Club N / Club FC S)
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1.
The claim lodged by the Claimant, club N, 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. 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
Enclosed: CAS directives
Solidarity mechanism relating to the player B
(Club N / Club FC S)
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