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), Chairman
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 xxxx
as Claimant
and the club
B, xxxx
as Respondent
and the club
C, xxxx
as intervening party
regarding a dispute for solidarity contribution in connection with
the transfer of the player D.
I.
Facts of the case
1.
According to the player passport issued by the relevant Football Federation the
player D, born on 27 August 1977, was registered with the club C during the
season 1997/1998 and 1998/99 during the ages of 20 and 21.
2.
According to the above-mentioned player passport the player concerned was
registered with another club, xxxxx, on 30 September 1998.
3.
On 28 June 2006, A, the Claimant, contacted FIFA explaining that the player
concerned was registered with the club B, the Respondent, on 23 July 2004 and
therefore it claimed 1% of the transfer compensation paid by the Respondent to
the player’s former club as solidarity contribution for the season 1997/1998, plus
5% default interest.
4.
In particular, the Claimant maintained that the Respondent paid the amount of
EUR 15,000,000 in cash plus the “federative rights” of the another player R
estimated at a value of EUR 6,000,000, i.e. the total amount of EUR 21,000,000 was
paid. As a result, the Claimant claims EUR 105,000 as solidarity contribution, plus
5% interest as from August 2005.
5.
The Respondent contacted FIFA explaining that it had already been contacted by
the club C. claiming solidarity contribution for the same season 1997/1998, as the
Claimant. In this sense, the Respondent explained that it is willing to pay the
relevant amount of solidarity contribution, however, it has to be formally decided
which club, i.e. C. or the Claimant, is actually entitled to receive the relevant
solidarity contribution for the season 1997/1998.
6.
Furthermore, the Respondent pointed out that no official confirmation issued by
the relevant Football Federation confirms that the player was actually registered
with the Claimant during the season 1997/1998.
7.
According to the relevant transfer agreement remitted to FIFA the Respondent
and the player’s former club agreed that the amount of EUR 18,000,000 will be
paid as follows:
“xxxxxxxx.”
8.
Upon FIFA’s request the Respondent confirmed that it paid the amount of EUR
15,000,000 to the player’s former club as follows: 3 instalments of EUR 4,000,000 as
well as the additional EUR 3,000,000. However, the Respondent deems that the
amount of EUR 6,000,000 in relation to the player R cannot be considered at all,
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when establishing the relevant solidarity contribution in connection with the
transfer of the player D.
9.
Upon FIFA’s request, the relevant Football Federation confirmed that despite
having the player concerned being registered with its affiliate C for the season
1997/1998 he actually played and rendered his services to the Claimant. Moreover,
the relevant Football Federation confirmed that as a matter of fact and according
to its regulations, the Claimant was until the season 1997/1998 a branch of C,
meaning that the Claimant is “usufructs”, for all legal matter, of the same rights
and corporate entity as C.
10.
C informed FIFA that during the season 1997/1998 the player concerned was
contractually bound to it. In this context, the aforementioned club provided a copy
of an employment contract valid as from 1 August 1997 until 31 July 2002.
11.
Consequently, C insisted that it is the entitled club to receive the relevant
proportion of the solidarity contribution for the season 1997/1998. Moreover, C
provided a copy of a loan agreement dated 6 July 1998 and explained that the
player was loaned to the Claimant in July 1998. The “loan” agreement states that
C transfers the sportive rights of the player to the Claimant, without, however
specifying any period of time. As compensation both clubs agreed that the
Claimant will take over all responsibilities and debts of C towards a third club.
12.
The Claimant explained that although the player was under contract with C and
received all his salaries from C during the 1997/1998 season, the player was
registered and regularly played for the Claimant during the 1997/1998 season.
13.
Finally, the Claimant provided an official confirmation signed by it and C
containing the names of all players, also including the player in question, which
were loaned by C. to the Claimant, under the “satellite clubs regulations” during
the season 1997/1998
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 28 June 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).
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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 in connection with the
transfer of the professional D during the course of a contract.
3.
Furthermore, and taking into consideration that the player was registered with his
new club on 23 July 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), and considering that the present claim was lodged on 28
June 2006, the 2001 version of the regulations (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 that the Claimant is requesting the
amount of USD 105,000 as solidarity contribution plus 5% of interest in connection
with the transfer of the player D to the Respondent, since it had trained the player
during the season 1997/1998.
5.
In this context, the Chamber took due note that the Respondent had never
disputed its obligation to pay the relevant proportion of solidarity contribution for
the season 1997/1998. However, due to the specificities of the present matter,
namely the fact that two different clubs are affirming towards the Respondent
having trained the player during season 1997/1998, the Respondent requested
that a formal decision should be taken, so as to avoid any possible erroneous
payments.
6.
In view of the above, the members of the Chamber concluded that primarily it
needed to be established whether the player concerned had been effectively
trained by the Claimant during the relevant season 1997/1998.
7.
In this respect, the Chamber took into account all documentation and submissions
remitted by the Claimant and C as well as the fact that the relevant Football
Federation confirmed that despite having the player concerned being registered
with its affiliate C for the season 1997/98 he actually played for the Claimant.
8.
In light of the above, the members of the Chamber underlined that as further
established in the art. 25 of the Regulations, a proportion of 5% of any
compensation paid to the previous club will be distributed to the club(s) involved
in the training and education of the player (emphasis added). This distribution will
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be made in proportion of the number of years the player has been registered with
the relevant clubs between the ages of 12 and 23.
9.
In this context, the Chamber emphasised that, for the present matter, irrespective
of the fact for which club the player concerned was actually registered within the
relevant Football Federation, the crucial element to determine which club should
be compensated for the player’s training, is the club which has effectively been
involved in the training and education of the player. Particularly, considering that
training compensation should benefit the clubs that have actually contributed and
invested in the training of a player.
10.
As a result, the members of the Chamber unanimously concluded that based on all
documents at disposal the Claimant has been the club that has been involved in
the training and education of the player in question during the season 1997/1998.
Consequently, the Claimant is entitled to receive the relevant proportion of
solidarity contribution for the season 1997/1998.
11.
In continuation, the Chamber turned its attention to the amount of compensation
paid by the Respondent to the player’s former club at the basis of the relevant
calculation of the amount due to the Claimant.
12.
In this respect, the Chamber took due note that, on the one hand, the Claimant
deems that the compensation paid in relation to the transfer of the player
concerned amounts to EUR 21,000,000. On the other hand, the Respondent deems
that the amount of EUR 6,000,000 in relation to the player R cannot be considered
at all and thus, the compensation to take into account to calculate the proportion
of solidarity contribution amounts to EUR 15,000,000.
13.
In view of the above, the Chamber emphasised that according to the relevant
transfer agreement signed between the Respondent and the player’s former club,
the aforementioned parties agreed on a transfer compensation amounting to EUR
18,000,000, equivalent to the value assigned to the player R of EUR 6,000,000 and
three instalments of EUR 4,000,000, plus a potential increment of maximum EUR
3,000,000 subject to the fulfilment of several conditions.
14.
The Chamber, following its general principles already applied in previous similar
cases, concluded that the amount of 5% to be distributed as a solidarity
contribution shall be calculated from the entire value of the transaction, not only
from the financial amount factually paid as a transfer compensation.
15.
The Chamber placed emphasis to the fact that applying the distribution of the 5%
due as solidarity contribution merely to the tangible amount of money remitted
would contravene the ratio itself of the solidarity mechanism. This is, since it
would lead to a circumvention of the principles of the Regulations which aim to
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support and encourage clubs in investing in the training and educating of young
players and thus should be rewarded for such investment.
16.
As a result, the Chamber decided that the relevant amount of solidarity
contribution due to the Claimant has to be calculated based on the total transfer
compensation amounting to EUR 21,000,000.
17.
Having thus been established that the transfer compensation based on which the
solidarity contribution should be calculated amounts to EUR 21,000,000, the
Chamber turned its attention to the calculation of the relevant amount.
18.
The Chamber made further reference 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.
19.
In this respect, the Chamber referred, on the one hand, to the above points 7-10
according to which it had been established that the relevant period of time to
take into account is the season 1997/1998, when the player was between the age
of 20 and 21. On the other hand, the Chamber considered that the Claimant is
requesting the amount of EUR 105,000 plus 5% interest.
20.
As a result, the Chamber concluded that the Claimant is entitled to receive the
amount of EUR 105,000 corresponding to 10% of 5% of EUR 21,000,000.
21.
Finally, and with regard to the claimed interest the Chamber concluded that
considering the specificities of the present matter, particularly with regard to the
ambiguity of the player’s registration and his actual training activity, which led to
the uncertainty of the Respondent with regard to the training club for the specific
season 1997/1998, the Claimant’s claim in this respect is to be rejected.
22.
Taking into account all of the above, the Dispute Resolution Chamber decided
that the Respondent must pay to the Claimant 10% of the 5% of the transfer
compensation paid in relation to the transfer of the player D from the player’s
former club to the Respondent, i.e. the amount of EUR 105,000.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant is partially accepted.
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2.
The Respondent has to pay the amount of EUR 105,000 within 30 days as from
the date of notification of this decision.
3.
Any further claims lodged by the Claimant are rejected.
4.
If the aforementioned sum is not paid within the aforementioned deadline an
interest rate of 5% per year will apply as of expiring of the fixed time limit and
the present matter shall be submitted upon the parties request to FIFA’s
Disciplinary Committee so that the necessary disciplinary sanctions may be
imposed.
5.
The Claimant is directed to inform the Respondent 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.
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:
Markus Kattner
Deputy Secretary General
Encl.
CAS directives
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