Solidarity Contribution
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 4 April 2007,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Mario Gallavotti (Italy), member
Ivan E. Gazidis (USA), member
Theo van Seggelen (the Netherlands), member
Carlos Soto (Chile), member
on a matter between
Club A, from X
and
Club B, from Y
and
Club C, from X
as intervening party
regarding the solidarity contribution related to the
transfer of the player D.
I.
Facts of the case
1.
According to the player passport of D (hereinafter: the player), issued by the X
Football Association, the player, born on 27 March 1982, was registered with A
from 3 June 1999 until 28 July 2000.
2.
On 21 January 2005, club B and the X club, C, concluded an agreement regarding
the transfer of the player from the X to the Y club, for an agreed transfer
compensation of USD 3 Mio.
3.
On 12 June 2006, club A lodged a formal complaint against club B at FIFA
requesting payment of solidarity contribution of 10% of 5% of the transfer
compensation agreed upon, in relation to the transfer of the D from club C to club
B, i.e. USD 15,000.
4.
In its response to the claim, the Respondent, club B, asserted to have paid 100% of
the transfer compensation to the player’s former club, C, and that therefore, the
latter is responsible to pay the relevant solidarity contribution to the training club.
5.
On 5 September 2006, FIFA informed the parties about the jurisprudence of the
Dispute Resolution Chamber in similar cases and suggested to the parties that club
B distributes the relevant proportion related to the 5% solidarity contribution of
the transfer compensation to the club involved in the training of the player in strict
application of art. 11 of the Regulations governing the Application of the 2001
Regulations for the Status and Transfer of Players. At the same time, the player’s
former club, club C, was invited to reimburse the same proportion of the 5% of the
compensation received from club B to the latter.
6.
Club C replied that it is the obligation of club B to pay the due amount to Club A
with respect to solidarity contribution as according to the transfer agreement, the
stipulated transfer compensation was a net amount. It hereby referred to the
wording of the transfer agreement concluded between club C and the Respondent
which stipulates that the amount contained in the agreement is free of tax, liability
and costs (“Las cifras expresadas en el presente contrato estan nominadas en
Dolares Estadounidenses libre de todo impuesto, gravamen o gasto”.)
7.
Club B insisted on having paid the entire transfer compensation to club C and
explained that the latter is not entitled to keep the entire sum.
Distribution of the solidarity contribution for the player D
(Club A, from X / Club B, from Y / Club C, from X)
2
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 12 June 2006, as
a consequence the Chamber concluded that the revised Procedural Rules (edition
2005) 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. 3 par. 1 of the abovementioned Rules states that the Dispute Resolution Chamber shall examine its
jurisdiction in the light of articles 22 to 24 of the current version of the Regulations
for the Status and Transfer of Players (edition 2005). In accordance with art. 24 par.
1 in connection with art. 22 (d) of the aforementioned Regulations, the Dispute
Resolution Chamber shall adjudicate on disputes between two clubs belonging to
different Associations related to solidarity mechanism.
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
requested by club A in connection with the transfer of the D 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 January 2005. Equally, the Chamber took note that the claim was
lodged at FIFA in June 2006. In view of the aforementioned, the Chamber
concluded that the former FIFA Regulations for the Status and Transfer of Players
(edition 2001, hereinafter: 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 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 has to distribute 5% of
any compensation paid to the previous club to the club(s) involved in the training
Distribution of the solidarity contribution for the player D
(Club A, from X / Club B, from Y / Club C, from X)
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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 period to be taken into account
with regard to the solidarity contribution runs from 3 June 1999, when the player
was 17, until 28 July 2000 when the player was 18.
7.
Subsequently, the deciding body recalled and confirmed that the 5% of any
compensation paid to the player’s former club have to be deducted from the total
amount of the relevant compensation, as confirmed in the FIFA circular no. 826 of
31 October 2002.
8.
In this respect, the Chamber duly noted that club B (the player’s new club) asserts
having paid the entire amount of USD 3 Mio. agreed upon as transfer
compensation to club C (the player’s previous club) and that therefore, the latter is
responsible to pay the relevant solidarity contribution to club A. In other words,
club B omitted to deduct 5% of the relevant transfer compensation related to the
solidarity mechanism. This fact is not contested by FC Libertad.
9.
Furthermore, the Chamber observed that club B maintained that club C should pay
the relevant proportion of solidarity contribution to Club Olimpia de Itagua or
should reimburse the relevant amount of transfer compensation in case club B
should have to make the payment of the solidarity contribution to the training
clubs at first.
10.
To that regard, the deciding body took note of the statement of the intervening
club, club C, that according to the wording of the transfer agreement it had
concluded with the Respondent, the received transfer compensation was “free of
tax, liability and costs”. Thus, the X club is of the opinion that the transfer
compensation agreed upon was a net amount. The intervening party therefore
contests its obligation to pay solidarity contribution to the training clubs.
11.
The Chamber considered that the relevant clause of the transfer agreement and its
interpretation following the principle of good faith, reasonably cannot lead to the
conclusion that the meaning of the words “free of tax, liability and costs” includes
the solidarity contribution. Such a standard phrase cannot serve such purpose. If the
parties to a transfer contract wish to make provision in respect of the liability for
the payment of the solidarity contribution, then they have to do so by a wording
that clearly reveals such an intention.
Distribution of the solidarity contribution for the player D
(Club A, from X / Club B, from Y / Club C, from X)
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12.
In continuation, 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 par. 1 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.
13.
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.
14.
The Chamber then referred to art. 10 of the Regulations governing the Application
of the Regulations which provides the shares for the distribution of the solidarity
contribution, according to the period at which the player was effectively trained by
the clubs involved.
15.
In the present case, the Chamber outlined that according to the confirmation of the
Football association of X, the period to be taken into consideration (period of
registration of the player with club A is the following: from 3 June 1999 to the end
of the season 1999 as well as from 1 January to 28 July 2000, at the player’s age of
17 to 18. In this respect, the Chamber concluded that the period of effective
training to be taken into account corresponds to 14 months.
16.
Therefore, the Chamber established that, in accordance with the breakdown
provided for in art. 10 of the Regulations governing the Application of the
Regulations, the claim of the Club A to receive 10% of the 5% of the compensation
paid in relation to the transfer of the player D from club C to club B, is justified.
17.
Finally, the Chamber noted that according to the transfer contract remitted to the
file, the player D was transferred for the amount of USD 3 Mio.
18.
Based on all of the above, the Dispute Resolution Chamber decided that club B has
to pay to club A USD 15,000 as solidarity contribution in relation to the transfer of
the player D and that club C has to reimburse the amount of USD 15,000 to club B.
Distribution of the solidarity contribution for the player D
(Club A, from X / Club B, from Y / Club C, from X)
5
III.
Decision of the Dispute Resolution Chamber
1.
The claim of Club A is accepted.
2.
The Y club, club B, has to pay the amount of USD 15,000 to club A 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.
Club A is directed to inform club B 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.
Club C has to reimburse the amount of USD 15,000 to club B 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 the 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.
7.
Club B is directed to inform club C 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. 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
Distribution of the solidarity contribution for the player D
(Club A, from X / Club B, from Y / Club C, from X)
6
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
General Secretary
Encl.
CAS directives
Distribution of the solidarity contribution for the player D
(Club A, from X / Club B, from Y / Club C, from X)
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