Solidarity Contribution
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 27 April 2007,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Wilfried Straub (Germany), Member
Mario Gallavotti (Italy), Member
Joaquim Evangelista (Portugal), Member
Gerardo Movilla (Spain), Member
on the claim presented by the club
Xxx, Xxx,
represented by Mr Xxx, Attorney at law,
as Claimant
against the club
Xxx, Xxx,
as Respondent
regarding the solidarity contribution
related to the transfer of the player Xxx
I.
Facts of the case
1.
According to the confirmation of the Xxx Football League dated 7 November
2005, the Xxx player, Xxx (hereinafter: the Player), born on 6 October 1977, was
registered for the Xxx club, Xxx (hereinafter: the Claimant), from 1990 until 1995,
i.e. between the ages of 12 and 17.
2.
On 13 August 2004, the Player was transferred from the Xxx club, Xxx, to the Xxx
club, Xxx (hereinafter: the Respondent), for a transfer compensation in the
amount of EUR 2,200,000, payable in 9 instalments falling due between 15
September 2004 and 30 May 2006.
3.
On 31 August 2004, the Player was registered for the Respondent with the Xxx
Football Federation.
4.
On 16 November 2005, the Claimant submitted a claim against the Respondent to
FIFA requesting the amount of EUR 75,000 as solidarity contribution
corresponding to 60% of 5% (for 2 half-sporting seasons and 5 entire sporting
seasons) of a transfer compensation in the amount of EUR 2,500,000, which was
allegedly paid for the transfer of the Player from the Xxx club, Xxx, to the
Respondent. Additionally, the Claimant claimed from the Respondent default
interest at a rate of 5% p.a. as from the day on which the payment had been due.
5.
On 15 March 2006, FIFA confirmed to the Claimant the amount of compensation
actually paid for the transfer of the Player, i.e. EUR 2,000,000.
6.
By its correspondence dated 29 March 2006, the Claimant recognised the amount
of transfer compensation paid and reduced its claim accordingly to EUR 66,000
due as solidarity contribution for the transfer of the Player, but insisted on the
default interest payment at a rate of 5% p.a. as from the day on which the
solidarity contribution in question had been due.
7.
On 4 April 2006, FIFA informed the Respondent that the Claimant agreed with the
calculation of the solidarity contribution on the basis of a transfer compensation
in the amount of EUR 2,200,000.
8.
On 8 June 2006, the Respondent accomplished the payment in the amount of EUR
66,000 to the Claimant.
2
Solidarity contribution for the transfer of the player Xxx
(Club Xxx, Xxx / Club Xxx, Xxx)
9.
Subsequently, the Claimant acknowledged receipt of the amount in question,
however, it maintained its claim regarding default interest at a rate of 5% p.a. as
from the day on which the payment of the solidarity contribution had been due.
10.
In its response, the Respondent stated that it had paid the Claimant’s proportion
of the solidarity contribution immediately after having been in a position to do so,
i.e. after having been provided with the confirmation of the Xxx Football League,
indicating that the Claimant was actually involved in the training and education of
the Player, and after having resolved the dispute with the Claimant regarding the
amount due as solidarity contribution, respectively, the amount of transfer
compensation paid for the Player. Furthermore, the Respondent argued that, even
though it had accomplished the last instalment payment of the transfer
compensation agreed upon with Xxx in advance, no default interest could be
imposed before the last instalment payment of the transfer compensation was
due as stipulated in the relevant transfer agreement. Therefore, the Respondent is
of the opinion that the Claimant is not entitled to receive any default interest.
11.
The Claimant insists on its claim regarding the payment of default interest at a
rate of 5% p.a. as from the day on which the payment had been due, allegedly,
the 31st day of the Player’s registration for the Respondent.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution 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 16
November 2005, as a consequence the Chamber concluded that the revised Rules
Governing Procedures (edition 2005) on matters pending before the decision
making bodies of FIFA are applicable to 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 combination with art. 22 d) of the aforementioned
Regulations, the Dispute Resolution Chamber shall adjudicate on disputes
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Solidarity contribution for the transfer of the player Xxx
(Club Xxx, Xxx / Club Xxx, Xxx)
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, respectively the potential payment of default interest deriving
therefrom, claimed by the Claimant in connection with the transfer of the
professional, Xxx, 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 b) 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 concerned had been
registered for his new club, the Respondent, on 31 August 2004. Equally, the
Chamber took note that the claim was lodged at FIFA on 16 November 2005. 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) in connection with the former Regulations governing the Application
of the Regulations for the Status and Transfer of Players (edition 2001,
hereinafter: the Application Regulations) are applicable to the case at hand as to
the substance.
5.
In continuation, and entering into the substance of the matter, the members of
the Chamber acknowledged that, at first, the Claimant requested the payment of
the solidarity contribution based on the years of training and education of the
Player with the Claimant as well as the payment of default interest at a rate of 5%
p.a. as from the day on which the payment of the solidarity contribution had
fallen due.
6.
In this respect, the Chamber took note that, in the meantime, and following FIFA’s
intervention in the matter, the Respondent had paid the claimed amount of EUR
66,000 as solidarity contribution to the Claimant. Furthermore, the Chamber noted
that the Claimant had accepted this amount as being the one due as solidarity
contribution.
4
Solidarity contribution for the transfer of the player Xxx
(Club Xxx, Xxx / Club Xxx, Xxx)
7.
As a result of the above, the Chamber concluded that with regard to the claimed
solidarity contribution an amicable settlement had been reached between the
parties involved.
8.
Consequently, the Chamber established that only the Claimant’s claim regarding
default interest a rate of 5% p.a. as from the day on which the payment of the
solidarity contribution had fallen due remains disputed.
9.
In this respect, the Chamber, first and foremost, went on to examine whether the
applicable Regulations contain explicit provisions, based on which the Claimant
could be awarded default interest.
10.
In this regard, the Chamber acknowledged that the Regulations do not foresee
any provision stipulating, per se, the right for the Claimant to receive default
interest for a possible late payment of the solidarity contribution. Indeed, the
pertinent articles, in particular, art. 25 par. 2 of the Regulations in connection with
art. 11 par. 3 of the Application Regulations, stipulate explicitly that the Dispute
Resolution Chamber may impose disciplinary measures on clubs that do not
observe the obligations regarding the payment procedure of the solidarity
contribution as set out in art. 11 par. 1 and 2 of the Application Regulations.
11.
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.
12.
In continuation, the Chamber recalled that the Claimant’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. 7.).
13.
On account of the above, and taking also into consideration that due to the
relevant amicable settlement, and the relevant goodwill finally showed by the
Respondent, no decision with regard to the Claimant’s principal claim for the
payment of solidarity contribution as to the substance had to be taken, the
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Solidarity contribution for the transfer of the player Xxx
(Club Xxx, Xxx / Club Xxx, Xxx)
members of the Dispute Resolution Chamber unanimously reached the conclusion
that there was no valid reason to award the Claimant default interest.
14.
As a consequence, the Chamber decided that the Claimant’s claim for default
interest only had to be rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim lodged by the Claimant, Xxx, is rejected.
2.
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:
Jérôme Valcke
General Secretary
Encl.
CAS directives
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Solidarity contribution for the transfer of the player Xxx
(Club Xxx, Xxx / Club Xxx, Xxx)