Solidarity Contribution
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 27 April 2006,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Jean-Marie Philips (Belgium), member
Wilfried Straub (Germany), member
Carlos Soto (Chile), member
Philippe Piat (France), member
on a matter between
the club, X,
represented by xxxxx
and
the club, Y,
represented by xxxxx
and
the club, Z,
represented by xxxxxx
as Intervening party
regarding the solidarity contribution related to the
transfer of the player A
I.
Facts of the case
1.
The player A, born on 19 June 1979, was transferred from Z to the club Y on 24
July 2004 for the amount of 5,000,000. A copy of the relevant transfer contract
was submitted to FIFA.
2.
On 24 July 2004, the club, X, sent a complaint against the club Y to FIFA regarding
the payment of solidarity contribution and/or training compensation in respect of
the player, A.
3.
On 19 August 2004, Y informed FIFA that the player had been transferred to them
on 24 July 2003 from the club, Z, for the sum of 5,000,000. Taking into account
that at the time the player was 24 years old no training compensation is due. With
regard to the claim for solidarity contribution Y referred to the articles 5, 6 and 13
of the relevant transfer agreement and pointed out that it already paid the
amount of 75,000 to Z, on behalf of O, as solidarity contribution.
Article 5 of the transfer agreement stipulates: “Z confirms and warrants to Y that
since the 3 June 1995 the Player has been registered solely with Z and O and no
other football clubs and/or teams and that since the 3 June 1995 no other football
clubs and/or teams are entitled to any compensation in respect of the Player’s
registration with Y hereunder including but without limitation pursuant to the
FIFA Regulations.”
Article 6 of the transfer agreement stipulates: “Z confirms and warrants to Y that
it will within 21 days of receipt of the sum payable under clause 3 [ 5,000,000]
hereof pay to O the sum of £75,000 (Seventy five thousand pounds sterling) in full
and final satisfaction of O’s claim for solidarity payment under Chapter IX of the
FIFA Regulations.”
Article 13 of the transfer agreement stipulates: “Z shall indemnity Y on demand in
respect of any claims with any other football clubs and/or teams may have and/or
may bring against Y arising out of Z’s breach of the warranties set out in clause 5
and 6 in respect of the Player’s registration with Y hereunder for a solidarity
payment pursuant to Chapter IX of the FIFA Regulations.”
4.
Furthermore, Y stressed that it has at no stage attempted to avoid its obligation as
the “new club” to deal with the solidarity contribution under the FIFA
Regulations. On the contrary, Y in fact distributed the solidarity payment within
30 days of the player’s registration in accordance with art. 25 of the FIFA
Regulations for the Status and Transfer of Players, however, as it seems to be, not
to the legitimate player’s training club(s).
5.
As a result, Y requested FIFA to invite the xxx Football Association to clarify the
situation and in case that it is established that any solidarity contribution should
have been paid to Z instead of O, Y deems that Z should deal with the matter, i.e.
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reimburse the amount of 75,000 paid to them as solidarity contribution on behalf
of O.
6.
Subsequently, X renounced to further pursue its claim for training compensation.
7.
On 15 March 2005, FIFA invited Z to provide its statement to the mater, in
particular regarding the position of Y that it should reimburse the amount of
75,000. In this respect, Z affirmed that X is no longer registered within the xxx
andtherefore it shall not be entitled to claim anything.
8.
On 27 September 2005, FIFA informed the clubs concerned by the present
procedure the well-established jurisprudence of the Dispute Resolution Chamber
applied in cases in which the new club omitted to deduct the relevant
proportion(s) of the 5% solidarity contribution, from the paid compensation, and
invited them to consider it accordingly.
9.
Upon FIFA’s request, the xxx confirmed that X had been registered within its
association as from 1994 until now. Moreover, the xxx confirmed that the player A
had been registered with X as from 15 March 1996 to 9 April 1997 and as from 11
July 1997 to 14 July 1998.
10.
On 10 October 2005, Z contested the period of time during which the player in
question had been registered with X. According to Z the player had only been
registered with X from 15 March 1996 until April 1997. As a result, Z is of the
opinion that only 10.83% of 5% of the transfer compensation paid by Y is due to
X as solidarity contribution, i.e. the amount of 27,080.
11.
Y once again underlined its willingness to solve the present affair, but requested
the intervention of FIFA in order to properly clarify the matter taking into account
particularly the contradictory information with regard to the player’s career
history.
12.
On 12 October 2005, X contested the arguments of Z and referred to the official
confirmation issued by the xxxx regarding the period of registration of the player,
A, with X.
13.
In November 2005, the xxx re-examined the matter and amended the period of
time during which the player had been registered with its affiliated club X, i.e. the
xxx confirmed that the player A had been registered with X as from April 1996
until May 1997 only, that is, for a bit more than one season between the ages of
16 and 17.
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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 referred to art. 18 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 24 July 2004, as
a consequence the Chamber concluded that the previous Procedural Rules (edition
2001) on matters pending before the decision making bodies of FIFA are
applicable on the matter at hand.
2.
With regard to the competence of the Chamber, art. 25 par. 2 of the FIFA
Regulations for the Status and Transfer of Players (edition 2001) establishes that, it
falls within the purview of the Dispute Resolution Chamber to review disputes
concerning the distribution of the solidarity contribution.
3.
As a consequence, the Dispute Resolution Chamber is the competent body to
decide on the present litigation concerning the distribution of the solidarity
contribution claimed by the club X in connection with the transfer of the
professional player A during the course of a contract.
4.
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 for the Status and Transfer of Players (edition 2005) in the
modified version in accordance with the FIFA circular no. 995 dated 23 September
2005. Furthermore, it acknowledged that the professional had been registered for
his new club in July 2003. Equally the Chamber took note that the claim was
lodged at FIFA in July 2004. 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.
5.
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 , 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.
6.
In the present case, the Chamber outlined that the entire period to be taken into
consideration with regard to the solidarity contribution would run from the
sporting season 1992, when the player was 12, until the sporting season 2002, at
the age of 23.
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7.
In continuation, the Chamber duly noted that Y (the player’s new club) asserts
having paid the entire amount of 5,000,000, agree upon as transfer compensation,
to Z (the player’s previous club). Furthermore, it agreed with the said club, on the
one hand, that the amount of 75,000 corresponds to the solidarity contribution
due to O and that Z would therefore pass on the relevant amount to the said club,
and on the other hand, that Z would be responsible for the payment of any
possible third club in connection with solidarity contribution. In other words, Y
omitted to deduct 5% of the relevant transfer compensation relating to the
solidarity mechanism, while contractually establishing that Z would make the
relevant payments.
8.
Furthermore, the Chamber observed that in view of what had been contractually
agreed between Y and Z, the club deemed that X should thus turn to Z in order to
collect the amount relating to its part of the 5% solidarity contribution.
9.
In this respect, 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
ordered to reimburse the same proportion(s) of the 5% of the compensation that
it received from the player’s new club.
10.
The said jurisprudence is based on the fact that there is no contractual link
between the training club claiming for solidarity contribution and the player’s
former club. Therefore, the relevant claim does not find a contractual basis. Yet,
the Regulations clearly establish that the distribution of the solidarity contribution
is incumbent on the new club. As a consequence, the Regulations provide for a
legal basis for the claim of the training club against the new club, yet not for a
claim against the player’s former club. Finally, the new club and the previous club
are bound by a contractual agreement, which needs to be respected.
11.
The Chamber then referred to art. 10 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.
12.
In the present case, the Chamber outlined that according to the amended
confirmation of the xxx the period to be taken into consideration (period of
registration of the player with the club X) went from April 1996 until May 1997,
when the player was between the age of 16 and 17. In this respect, the Chamber
concluded that the period of effective training to be taken into account
corresponds to 1 season and 2 months.
13.
Therefore, the Chamber established that, in accordance with the breakdown
provided for in art. 10 of the Regulations governing the Application of the
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Regulations, X is entitled to receive 11.7% of the 5% of the compensation paid in
relation to the transfer of the player A from Z to Y.
14.
The Chamber noted that according to the transfer contract remitted to the file
the player A was transferred for the amount of 5,000,000.
15.
Based on all of the above, the Dispute Resolution Chamber decided that Y must
pay to X 11.7% of the 5% of the transfer compensation paid in relation to the
transfer of the player A, i.e. 29,250 and that Z must reimburse the amount of
29,250 to Y.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of X is accepted.
2.
The club Y has to pay the amount of 29,250 to X within 30 days as from the date
of notification of this decision.
3.
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 to FIFA’s Disciplinary Committee, so that the
necessary disciplinary sanctions may be imposed.
4.
X is directed to inform Y 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.
Z has to reimburse the amount of 29,250 to Y within 30 days of notification of
the present decision.
6.
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 to FIFA’s Disciplinary Committee, so that the
necessary disciplinary sanctions may be imposed.
7.
Y is directed to inform Z 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
8.
According to art. 60 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
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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:
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:
Urs Linsi
General Secretary
Encl.
CAS directives
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