Solidarity Contribution
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 7 April 2011,
in the following composition:
Geoff Thompson (England), Chairman ad interim
Michele Colucci (Italy), member
Jon Newman (USA), member
Mario Gallavotti (Italy), member
Todd Durbin (USA), member
on a matter between the club
V,
and the club
FC P,
and the club
G,
as intervening party
regarding a solidarity contribution dispute related to the
transfer of the player X
I.
Facts of the case
1.
According to the player passport issued by the Football Federation of P
(hereinafter: FFP), the player, X (hereinafter: the player), born on 5 June 1978, was
registered for the club, V (hereinafter: V) first as an amateur from 17 May 1988
until 15 September 1992 as well as from 19 August 1993 until 27 September 1994,
and then as a professional from 28 September 1994 until 1 September 1998 as well
as from 2 August 1999 until 31 July 2000.
2.
The Football Federation of P informed FIFA that the country P sporting season
started, for the years 1992 to 2000, on 1 August and ended on 31 July of the
following year.
3.
The Football Federation of P also informed FIFA that the starting and ending of
the sporting season as from the 2000/01 season was as follows:
- Non-professional competitions: from 1 August to 30 June [sic!] of the following
year;
- Professional competitions: from 1 July to 30 June of the following year.
4.
On 10 March 2009, the club, FC P (hereinafter: FC P), and the club, G (hereinafter:
G), concluded a transfer agreement (hereinafter: the agreement), by means of
which FC P undertook the obligation to pay to Club G a transfer fee of EUR
6,500,000 net, as per the following instalments:
- EUR 4,000,000 to be paid until 12 March 2009;
- EUR 2,500,000 to be paid until 31 May 2009 (cf. paragraph 2.3. of the
agreement).
According to paragraph 2.2 of this agreement, the transfer fee should include
50 % of the solidarity mechanism contribution to be paid in accordance with the
FIFA Regulations on the Status and Transfer of Players (hereinafter: the
Regulations). The parties explicitly confirmed that Club G should be solely
responsible for the calculation and for the payment of these 50 % of the solidarity
contribution in favour of the former clubs of the player. The balance of another
50 % of the solidarity contribution should be calculated and paid by FC P in
surplus and exceeding the transfer fee.
5.
On 12 March 2009, the player was registered at the Football Association of R in
order to play for FC P.
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6.
On 16 March 2009, Club V faxed a correspondence to FC P, asking the latter for
the payment of the compensation resulting from the solidarity mechanism related
to the services allegedly rendered by Club V in the training and education of the
player, which would correspond to 75% of 5% from the total amount of the
transfer from Club G to FC P.
7.
By means of a fax dated 2 April 2009, Club V sent a reminder to FC P, giving a
deadline until 8 April 2009 to pay the solidarity contribution for the transfer of
the player.
8.
By means of another fax dated 27 April 2009, Club V sent a last reminder to FC P,
giving a deadline until 30 April 2009 to pay the solidarity contribution for said
transfer.
9.
On 18 May 2009, FC P replied to Club V stating that there was a number of issues
preventing them from paying the solidarity contribution resulting from the
transfer of the player to Club G, as follows:
a)
Having studied the player passport, FC P stated to have come across a
number of unclear issues that did not allow them to assess the total
percentage of the solidarity contribution due to Club V. In particular, FC P
stated to not see clearly how the player could be with Club V for the entire
season 1989/90, 1990/91 and 1991/92, if he was registered with the latter
only in February or March.
b)
On the other hand, FC P also stressed that under the agreement with Club G,
50% of the total solidarity contribution, to be distributed as a result of the
transfer, should be deducted from the sums received by the latter. Therefore,
Club V would have needed to address Club G as well to get the other 50% of
the total sum that would be due to them.
10.
By means of a last fax dated 1 June 2009, Club V replicated to FC P, emphasising
that it could not accept the deal between the latter and Club G, by means of
which FC P was [only] obliged to assume the payment of 50% of the solidarity
contribution, recalling the “establishments” of the Regulations. In this case, FC P
would have the full obligation to assume the totality of the payment. Therefore,
Club V gave FC P a deadline until 5 June 2009 to pay the due amount of the
solidarity contribution.
11.
On 3 July 2009, Club V submitted a claim to the FIFA Dispute Resolution Chamber
(DRC), asking the latter to order FC P to pay to Club V 75% of the 5%
compensation of solidarity mechanism, from the amount of the transfer of the
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player from Club G to FC P. In particular, Club V explained that the above
mentioned compensation referred to the years of training that the player
allegedly received at its club between the age of 12 and 23, more precisely, in the
following seasons: 1989/90 (5%), 1990/91 (5%), 1991/92 (5%), 1993/94 (10%),
1994/95 (10%), 1995/96 (10%), 1996/97 (10%), 1997/98 (10%) and 1999/2000
(10%). So, accordingly, the player allegedly received 9 years of training and
education by Club V, as mentioned in the player passport emitted by the Football
Federation of P.
12.
In its reply, FC P informed FIFA that, in accordance with the paragraph 2.2 of the
agreement, it had already paid its part of the solidarity contribution due to Club
V. Therefore, in accordance with this paragraph, it would be the obligation of
Club G to pay the remaining part of the solidarity contribution due to Club V.
13.
Since Club V was copied in FC P’s above-mentioned correspondence, it replicated
immediately on the same day to the DRC, stating that it could not accept the
agreement between FC P and Club G about the payment of the other 50%, in
accordance with article 2 paragraph 2 of Annexe 5 of the Regulations. So, FC P
would be the sole responsible for the entire payment of the solidarity
contribution.
14.
Upon receipt of FC P’s position, FIFA informed several times all the parties
concerned about the jurisprudence of the DRC in similar cases, in accordance with
which the player’s new club, in casu FC P , would be ordered to remit the relevant
proportion of the 5% solidarity contribution to the club involved in the player’s
training, in casu Club V, in strict application of the relevant provisions of the
Regulations. At the same time, the player’s former club, in casu Club G, would be
ordered to reimburse the same proportion of the 5% of the compensation that it
received from the player’s new club.
15.
After having received FIFA’s aforementioned letters, Club V informed several times
the DRC that FC P had not yet made the full payment of the solidarity contribution
from the transfer of the player, and that the amount still owed to it was of EUR
125,551.50, corresponding to 50% of the solidarity contribution.
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16.
In reaction to FIFA’s aforementioned letters, FC P stated to be ready to pay the full
amount of the solidarity contribution to Club V even in absence of a formal
decision by the DRC, but insisted that the latter would proceed with a formal
decision obliging Club G to reimburse FC P any payment that it might make to
Club V before the formal decision.
17.
Despite having been informed several times by FIFA about the clear established
jurisprudence of the DRC in similar cases and having been invited several times to
act accordingly, Club G never reacted.
18.
Finally, after the closure of the investigation – but two days before the submission
of the case to the DRC – Club V informed the latter that FC P had paid the
solidarity contribution for the player in the amount of EUR 125,551.50, but not the
interest of that amount, at 4% per year, which, according to their calculation,
amounted to EUR 8,760. Therefore, Club V maintained its claim but only regarding
the payment of the latter amount of interest.
*****
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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 3 July 2009. Consequently, the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(edition 2008; hereinafter: the Procedural Rules) are applicable to the matter at
hand (cf. art. 21 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 2010), the Dispute Resolution Chamber is competent to decide on
the present litigation concerning the distribution of the solidarity contribution
claimed by Club V in connection with the international transfer of the professional
player X, from the Club G, to FC P.
3.
Furthermore, and taking into consideration that the player was registered with his
new club on 12 March 2009, 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 (editions 2010 and 2009), and considering that the present claim was
lodged on 3 July 2009, the 2008 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 Club V lodged a formal complaint
at FIFA against Club P, requesting the payment of the solidarity contribution in
connection with the transfer of the player from Club G to FC P, for the period of
nine sporting seasons, during which the player was registered with it, with some
interruptions between the ages of 9 and 22; more precisely, in the following
seasons: 1989/90 (5%), 1990/91 (5%), 1991/92 (5%), 1993/94 (10%), 1994/95 (10%),
1995/96 (10%), 1996/97 (10%), 1997/98 (10%) and 1999/2000 (10%). This is, the
Chamber took due note that Club V first requested from FC P the payment of 75%
of the 5%, i.e. 3.75% of the total transfer compensation agreed upon between
Club G and FC P. However, later on, Club V amended its claim and requested the
concrete amount of EUR 125,551.50, which would allegedly correspond to 50% of
the proportion of the solidarity contribution to which it would be entitled.
5.
In continuation, the Chamber emphasized that, as established in art. 21 of the
Regulations in connection with Annexe 5 of the Regulations, the new club of the
player has to distribute 5% of any compensation paid to the previous club to the
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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 seasons of his 12th and 23rd birthday.
6.
In this respect, the Chamber duly noted that FC P, referring to the paragraph 2.2
of the transfer agreement, according to which the transfer fee should include 50%
of the solidarity contribution and according to which the parties explicitly agreed
that Club G should have been solely responsible for the payment of the remaining
50% of the solidarity contribution in favour of the former clubs of the player,
asserted having paid its part of the solidarity contribution due to Club V, i.e. 50%
of the solidarity contribution due to the latter club. Therefore, in accordance with
the above-mentioned paragraph, FC P held that it was the obligation of Club G to
pay the remaining part of the solidarity contribution due to Club V.
7.
After having examined the paragraph 2.2 of the transfer agreement signed
between FC P and Club G, the Chamber deemed it appropriate to point out that
the contents of said clause is in contradiction to article 21 and Annexe 5 of the
Regulations; this is, the relevant article of the Regulations cannot be set aside by
means of a contract concluded between the clubs involved in a player’s transfer. In
other words, said article of the Regulations is mandatory and its implementation
shall not be affected by clubs involved in a player’s transfer agreeing upon other
terms.
8.
On account of the above, 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
article 21 and Annexe 5 of the Regulations. At the same time, 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.
9.
As a result, and in application of said jurisprudence, the DRC decided that the
argumentation of FC P could not be taken into consideration.
10.
The Chamber then referred to article 1 of Annexe 5 of the Regulations, which
provides the figures for the distribution of the solidarity contribution, according
to the period in which the player was effectively trained by the club involved.
11.
In this regard, the Chamber outlined that the period to be taken into
consideration (period of registration of the player with Club V) had to be
determined according to the confirmation issued by the Football Federation of P.
In this respect, the Chamber acknowledged that the player was registered for Club
V first as an amateur from 17 May 1988 until 15 September 1992 as well as from
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19 August 1993 until 27 September 1994, and then as a professional from
28 September 1994 until 1 September 1998 as well as from 2 August 1999 until
31 July 2000. Consequently, the Chamber decided that Club V was entitled to
receive solidarity contribution for the periods from 1 August 1989 until
15 September 1992, from 19 August 1993 until 1 September 1998, as well as from
2 August 1999 until 31 July 2000. In other words, the members of the Chamber
decided that Club V’s entitlement corresponded to the entire seasons of the
player’s 12th (1989/1990), 13th (1990/91) and 14th (1991/92) birthdays, as well as for
two months of the season of the player’s 15th birthday (1992/93); further, for
eleven months of the season of the player’s 16th birthday (1993/94), for the entire
seasons of the player’s 17th (1994/95), 18th (1995/96), 19th (1996/97) and 20th
(1997/98) birthdays, as well as for one month of the season of the player’s
21st birthday (1998/99); and finally, for the entire season of the player’s
22nd birthday (1999/2000). Therefore, the Chamber concluded that the period of
effective training to be taken into account corresponds to nine sporting seasons
and two months.
12.
In view of the above, the Chamber established that, in accordance with the
breakdown provided for in article 1 of Annexe 5 of the Regulations, Club V’s
entitlement corresponded to the percentage claimed by Club V, i.e. 75 % of the
5% of the compensation paid in relation to the transfer of the player from Club G
to FC P.
13.
In continuation, the Chamber took note that that, in the meantime, and following
FIFA’s intervention in the matter, FC P had paid the claimed amount of
EUR 125,551.50 as solidarity contribution to Club V. Furthermore, the Chamber
noted that Club V had accepted this amount as being the one due to it by FC P as
solidarity contribution.
14.
As a result of the above, the Chamber concluded that with regard to the claimed
solidarity contribution claimed by Club V, an amicable settlement had been
reached with FC P.
15.
Consequently, the Chamber established that only Club V’s claim regarding default
interest at a rate of 4% per year, as from the day on which the payment of the
solidarity contribution had fallen due, remained disputed.
In this respect, the Chamber, first and foremost, went on to examine whether the
applicable Regulations contain explicit provisions, based on which Club V could be
awarded default interest.
16.
17.
In this regard, the Chamber acknowledged that the Regulations do not foresee
any provision stipulating, per se, the right for Club V to receive default interest for
a possible late payment of the solidarity contribution. Indeed, the pertinent
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article, in particular, article 2, paragraph 4 of the Annexe 5 of the Regulations,
stipulated explicitly that the Dispute Resolution Chamber may impose disciplinary
measures on clubs that do not observe the obligations set out in this annexe.
18.
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.
19.
In continuation, the Chamber recalled that Club V’s principal claim regarding the
payment of its proportion of the solidarity contribution, which would in any case
constitute the basis for a possible award of default interest within the scope of the
deciding authority’s discretion, had already been settled amicably (cf. point II. 15.).
20.
On account of the above, and taking also into consideration that due to the
relevant amicable settlement, and the goodwill finally showed by FC P, no decision
with regard to Club V’s principal claim for the payment of solidarity contribution
as to the substance had to be taken, the members of the Dispute Resolution
Chamber unanimously reached the conclusion that there was no valid reason to
award Club V default interest.
21.
As a consequence, the Chamber decided that Club V’s claim for default interest
must be rejected.
22.
Finally, notwithstanding the above, the Chamber decided, in accordance with its
well-established jurisprudence (cf. point II.8. above) that Club G has to reimburse
the amount of EUR 121,875 corresponding to the remaining half of Club V’s
proportion of the solidarity contribution as claimed by the latter, i.e. of (75% *
5% =) 3.75% of the total compensation of EUR 6,500,000 paid by FC P to Club G.
Club V’s proportion of the solidarity contribution amounting to a total of EUR
243,750 (3.75% of EUR 6,500,000), the members of the Chamber calculated that
half of this amount equals to EUR 121,875.
23.
In continuation, the deciding authority referred to art. 25 par. 2 of the Regulations
in combination with art. 18 par. 1 of the Procedural Rules, according to which in
the proceedings before the Dispute Resolution Chamber relating to disputes
regarding training compensation solidarity mechanism costs in the maximum
amount of CHF 25,000 are levied. The costs are to be borne in consideration of the
parties’ degree of success in the proceedings.
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24.
In this respect, the Chamber reiterated that the claim of Club V is rejected.
Therefore, the Dispute Resolution Chamber decided that Club V has to bear the
costs of the current proceedings in front of FIFA.
25.
In this regard, the members of the Chamber recalled that according to Annexe A
of the Procedural Rules, the costs of the proceedings are to be levied on the basis
of the amount in dispute.
26.
Further, the DRC also recalled that the amount in dispute to be taken into
consideration in the present proceedings amounts to EUR (125,551.50 + 8,760 =)
134,311.50 related to the claim of Club V. Therefore, the Chamber concluded that
the maximum amount of costs of the proceedings corresponds to CHF 20,000
(cf. table in Annexe A).
27.
Considering that the case at hand allowed to be dealt with following a reasonable
procedure, that the case was adjudicated by the Chamber, that the present case
did not show particular factual difficulty and that it did not involve specific legal
complexity, the Chamber determined the final amount of costs of the current
proceedings to the amount of CHF 2,000.
28.
In view of all of the above, the Chamber concluded that the amount of CHF 2,000
has to be paid by Club V to FIFA to cover the costs of the present proceedings.
*****
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III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Club V, is rejected.
2.
The final amount of costs of the proceedings in the amount of CHF 2,000 are
to be paid by the Club V, within 30 days of notification of the present
decision to FIFA to the following bank account with reference to case no. XXXXXXX/XXX:
UBS Zurich
Account number 366.677.01U (FIFA Players’ Status)
Clearing number 230
IBAN: CH27 0023 0230 3666 7701U
SWIFT: UBSWCHZH80A
3.
The intervening party, the Club G, has to reimburse the amount of EUR
121,875 to the FC P, within 30 days as from the date of notification of this
decision.
4.
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 its consideration and a formal decision.
5.
FC P, is directed to inform the intervening party, Club G, 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 Dispute Resolution Chamber:
Markus Kattner
Deputy Secretary General
Encl.
CAS directives
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