Solidarity Contribution
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 26 April 2012,
in the following composition:
Geoff Thompson (England), Chairman
Carlos Soto (Chile), member
Brendan Schwab (Australia), member
Damir Vrbanovic (Croatia), member
Todd Durbin (USA), member
on the claim presented by the
Club A,
as Claimant
against the club
M FC,
as Respondent
regarding a dispute relating to the solidarity contribution
in connection with the player C
I.
Facts of the case
1.
The country A player, C (hereinafter: the player), was born on 5 February 1984.
2.
The Football Association A (hereinafter: FAA) confirmed that the player was
registered with its affiliate, Club A (hereinafter: the Claimant), as an amateur from
4 March 1998 until 22 July 2002, and as a professional from 23 July 2002 until 27
January 2005.
3.
The sporting season in country A runs as follows: a) for amateurs (under 20 years
of age) from January until December of the relevant year and b) for amateurs
(more than 20 years of age) and professionals from 1 July until 30 June of the
following year.
4.
According to a written statement from The Football Federation M (The FFM), the
player was registered for its affiliated club, M FC (hereinafter: the Respondent), on
10 August 2007.
5.
On 10 August 2009, the Claimant contacted FIFA claiming its proportion of the
solidarity contribution in connection with the domestic loan of the player from the
country E club, Club H (hereinafter: Club H), to the Respondent.
6.
In particular, the Claimant requested 2.7% of the total loan fee plus 5% interest
per year as from 11 September 2007 until the day of effective payment.
7.
In this respect, the Claimant based the competence of the DRC on art. 24 par. 1 in
connection with art. 20 d) of the FIFA Regulations on the Status and Transfer of
Players (hereinafter: the FIFA Regulations), as well as on the fact that a country A
club lodged a claim against a country E club. Furthermore, the Claimant referred
to art. 1 par. 2 of the FIFA Regulations, according to which the regulations of the
associations should provide for a system to reward clubs investing in the training
and education of young players. In case The Football Federation M did not comply
with said provision, the FIFA Regulations should be applied to the present matter.
8.
The FIFA administration informed the Claimant that the principle regarding the
solidarity mechanism, contained in the FIFA Regulations, would not be applicable
to domestic transfers, and that, thus, the DRC would not be in a position to
intervene in the present matter.
9.
Despite this information, the Claimant insisted on its claim, adding that it was also
directed against The Football Federation M. Furthermore, it also pointed out that
the circumstances have changed what would motivate a change of the Dispute
Resolution Chamber’s (hereinafter: the DRC) jurisprudence.
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10.
In its statement of defence, the Respondent rejected the Claimant’s claim, stating
that the player was transferred to the Respondent after the expiry of his
employment contract with Club H. Therefore, the player was a free agent, and
consequently, no compensation had been paid to Club H.
11.
Moreover, the Respondent pointed out that in line with the well-established
jurisprudence of the Court of Arbitration for Sport (CAS) and the DRC’: the FIFA
Regulations would not be applicable to domestic transfers. In this regard, it
referred to the Commentary to the FIFA Regulations, which states that the
provisions concerning solidarity contribution apply only in the event of an
international transfer, and that solidarity contribution is not applicable to
domestic transfers, unless the association concerned has included a clear clause in
its own regulations, acknowledging the obligation to pay solidarity contribution as
a consequence of domestic transfers. However, the regulations of The Football
Federation M, which were approved by FIFA, would not include such rule, but only
an alternative provision for rewarding training clubs in the domestic game.
12.
Finally, the Respondent also asked for the reimbursement of its costs by the
Claimant.
13.
Subsequently, the Claimant asked FIFA to inform it if the regulations of The
Football Federation M had indeed been approved, and, in the affirmative, to
include them in the present dispute, in order to analyse them.
14.
In conclusion, the Respondent provided a copy of a letter, dated 2 August 2007,
from Club H, by means of which the latter confirmed that it “shall demand no
compensation of any nature whatsoever from [the Respondent] and/or the player
in respect of [the Respondent]’s registration of the player”.
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II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter: the DRC or the Chamber)
analysed whether it was competent to deal with the matter at stake. In this
respect, it referred to art. 21 par. 2 and 3 of the Rules Governing the Procedures of
the Players’ Status Committee and the Dispute Resolution Chamber. The present
matter was submitted to FIFA on 10 August 2009. As a consequence, the Chamber
concluded that the 2008 edition of the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the
Procedural Rules) is applicable to the matter at hand.
2.
With regard to the competence of the Chamber, art. 3 par. 1 of the Procedural
Rules states that the Dispute Resolution Chamber shall examine its jurisdiction in
the light of the arts. 22 to 24 of the FIFA Regulations on the Status and Transfer of
Players (editions 2010, 2009, 2008 and 2005). In accordance with art. 1 par. 1 of the
aforementioned Regulations, which describes the scope of the relevant
Regulations, in connection with articles 24 par. 1 and 22 d) of said Regulations, the
Dispute Resolution Chamber is competent to deal with the matter at stake, which
is of an international dimension, the Claimant and the Respondent being
affiliated to different associations and concerns the distribution of solidarity
contribution claimed by the Claimant.
3.
Concerning the Claimant’s explanation that its claim would also be directed
against The Football Federation M, the DRC deemed it necessary to underline that
art. 22 in combination with art. 24 par. 1 of the above-mentioned Regulations
would not give the Dispute Resolution Chamber the competence to decide upon a
dispute between an association and a club belonging to another association.
Consequently, the DRC is not competent to deal with said prayer of the Claimant.
4.
Furthermore, and taking into consideration that the player was registered for the
Respondent on 10 August 2007, the Chamber analysed which edition of the FIFA
Regulations on the Status and Transfer of Players 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 FIFA Regulations on the Status and Transfer of Players
(editions 2010, 2009 and 2008), the previous edition (i.e. the 2005 edition) of the
Regulations for the Status and Transfer of Players (hereinafter: the FIFA
Regulations) is applicable to the matter at hand as to the substance.
5.
In continuation, and entering into the substance of the matter, the DRC started by
acknowledging that the Claimant was claiming 2.7% of the total loan fee as
solidarity contribution in connection with the national loan of the player from
Club H to the Respondent, equally a country E club, plus 5% interest per year as
from 11 September 2007 until the day of effective payment.
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6.
More particularly, the Chamber observed that the Claimant based its claim
primarily on art. 1 par. 2 of the FIFA Regulations as well as on the national
regulations of The Football Federation M, which, according to the Claimant,
should contain a solidarity mechanism system similar to the solidarity mechanism
system contained in the FIFA Regulations. Equally, the Chamber noted that, in the
alternative, the Claimant claimed the payment of solidarity contribution on the
basis of the FIFA Regulations.
7.
With due consideration to the above, the Chamber first of all turned its attention
to the question as to whether or not the Claimant, based on the FIFA Regulations,
is entitled to receive solidarity contribution from the Respondent in connection
with the domestic transfer of the player from Club H to the Respondent.
8.
In this respect, the Chamber referred to art. 1 of the FIFA Regulations, in
particular, to its par. 1, which stipulates that the FIFA Regulations lay down global
and binding rules concerning the status of players, their eligibility to participate in
organised football, and their transfer between clubs belonging to different
associations.
9.
In addition, and in light of the arguments set forth by the Claimant, the Chamber
found deemed essential to emphasise that, in accordance with art. 1 par. 2 e
contrario of the FIFA Regulations, the member associations of FIFA are not obliged
to implement a solidarity mechanism system in their national regulations, which
would be identical or similar to the solidarity mechanism system contained in the
FIFA Regulations; the member associations are merely directed to provide for a
system that rewards clubs investing in the training and education of young
players. In which manner a member association subsequently decides to reward
clubs investing in the training and education of young players is left to the full
discretion of the member association; in other words, the member associations do
not necessarily have to implement a solidarity contribution mechanism identical or
similar to the solidarity contribution mechanism contained in the FIFA Regulations.
In this context, the Chamber wished to emphasize, in particular, that the solidarity
contribution mechanism is not included in the list of mandatory provisions (“ius
cogens”) to be put in place at national level.
10.
For the sake of good order, the Chamber pointed out that the above
interpretation of the FIFA Regulations has also been confirmed by the CAS in CAS
2007/X/XXXX FC X v/FC Y & FIFA, by means of which the Panel confirmed that “a
FIFA rule intended to apply, according to its clear wording, only to “international
transfer” is not made applicable to “internal transfers” merely because national
associations are bound to observe the FIFA rules or because FIFA has a regulatory
and supervisory function over national association”. Equally, the Panel considered
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that “the clear wording of the FIFA Regulations leaves no room for a different
solution”.
11.
Hence, in accordance with the clear wording of art. 1 par. 1 and par. 2 of the FIFA
Regulations, as well as in accordance with the well-established and longstanding
jurisprudence of the DRC, which was – as stated before – confirmed by the CAS,
the members of the Chamber concurred that the solidarity mechanism system
contained in the FIFA Regulations only applies to international transfers of
players, but not to national transfers of players. Consequently, the Chamber
decided to reject the Claimant’s claim for solidarity contribution based on the FIFA
Regulations.
12.
Secondly, the Chamber turned its attention to the question as to whether or not
the Claimant, based on the national regulations of The Football Federation M,
would be entitled to receive solidarity contribution from the Respondent in
connection with the domestic loan of the player from Club M to the Respondent.
13.
More particularly, the Chamber observed that it had to examine whether a
country A club, i.e. a club not affiliated to The Football Federation M, can derive
rights from the regulations laid down by The Football Federation M, i.e. from the
regulations established by an association to which it is not affiliated.
14.
The Chamber was of the firm and unanimous opinion that this cannot be the case.
Indeed, by establishing that the rules and regulations of an association would also
apply to an entity, not affiliated to such association, would clearly be incompatible
with the general principles of association law, in particular, with the general legal
principle of freedom of association, which establishes that every association can, in
principle, accept or refuse any applicant for membership.
15.
Taking into consideration that the Claimant is not a member of The Football
Federation M, the Chamber sees therefore no legal basis to uphold the
assumption that regulations, issued by an association, are applicable to legal
entities that are not affiliated to the relevant association. Furthermore, the
members of the Chamber also considered that the DRC is not in a position to
extend the rules and regulations laid down at national level in the context of art.
1 of the FIFA Regulations by analogy to foreign clubs.
16.
On account of the above, the Chamber deemed that the Claimant cannot derive
an entitlement to solidarity contribution from the regulations of The Football
Federation M. In view of the foregoing, the Dispute Resolution Chamber decided
to reject the Claimant’s claim for solidarity contribution based on the regulations
of The Football Federation M.
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17.
With regard to the Respondent’s request for the reimbursement of its legal
expenses, the Chamber recalled the contents of art. 18 par. 4 of the Procedural
Rules, which clearly stipulates that no procedural compensation shall be awarded
in proceedings in front of the Dispute Resolution Chamber. Therefore, the
members of the Chamber had no other alternative than to reject this prayer made
by the Respondent.
18.
Lastly, the Chamber referred to art. 18 par. 1 of the Procedural Rules, according to
which, in proceedings before the DRC relating to disputes regarding training
compensation and the solidarity mechanism, costs in the maximum amount of
CHF 25,000 are levied. It is further stipulated that the costs are to be borne in
consideration of the parties’ degree of success in the proceedings and that, in
accordance with Annexe A of the Procedural Rules, the costs of the proceedings
are based on the amount in dispute.
19.
Taking into account that the claim of the Claimant has been rejected, the
Chamber concluded that the Claimant has to bear the costs of the current
proceedings.
20.
In respect of the above (cf. point II./18. above), the Chamber held that the
Claimant did not specifiy a certain amount, but merely claimed a percentage of
2.7% out of the alleged loan fee paid by the Respondent to Club H. Therefore, it
referred again to art. 18 par. 1 of the Procedural Rules, according to which costs
may be imposed upon a party which generate unnecessary costs on account of its
conduct.
21.
Subsequently and taking into consideration that the Claimant had insisted on its
claim despite having explicitly been informed by the FIFA administration that the
FIFA Regulations would not apply to national transfers of players, the Chamber
determined the costs of the current proceedings to the amount of CHF 18,000
which shall be entirely borne by the Claimant.
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III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Club A, is rejected.
2.
The final amount of costs of the proceedings in the amount of CHF 18,000 are to
be paid by the Claimant, Club A, within 30 days of notification of the present
decision to FIFA to the following bank account with reference to case no.:
UBS Zurich
Account number 366.677.01U (FIFA Players’ Status)
Clearing number 230
IBAN: CH27 0023 0230 3666 7701U
SWIFT: UBSWCHZH80A
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Note relating to the motivated decision (legal remedy):
According to art. 67 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
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