Solidarity Contribution
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 16 April 2009,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Theo van Seggelen (Netherlands), member
David Mayebi (Cameroon), member
Philippe Diallo (France), member
Zola Majavu (South Africa), member
on the claim presented by the club,
L,
as “Claimant”
against the club,
P,
as “Respondent”
regarding solidarity contribution related to the international transfer of the player, U.
I.
Facts of the case
1.
The player, U, was born on 8 January 1982.
2.
According to the player passport issued by the F Football Federation, the player
was registered with Club L (hereinafter: L) as from 31 July 2002 until 30 June 2005.
3.
The F sporting season runs from 1 July until 30 June of the following year.
4.
The Football Association has failed to indicate the date on which the player was
registered with its member club, P. However, according to the aforementioned
player passport, the F Football Federation issued the relevant international
transfer certificate on behalf of the Football Association on 17 July 2007.
5.
On 14 January 2008, L lodged a claim in front of the Dispute Resolution Chamber
(DRC) against P maintaining that it is entitled to receive from P FC 30% of the 5%
solidarity contribution (or 1,5 % of the transfer compensation) on the basis of art.
21 and Annex 5 of the Regulations for the Status and Transfer of Players (2005
edition) in connection with the transfer of the player, U, from S to P.
6.
L asserts being unaware of the amount of transfer compensation agreed upon
between the player’s former and new club and asks that such amount shall be
disclosed by P.
7.
Along with its claim, L presented a copy of the correspondence dated 14
November 2007 that it received from P, in which the club P informs L that the
transfer compensation amounts to EUR 10,000,000 and that, whereas it confirms
that solidarity contribution is payable, it disagrees with L’ calculation of its
proportion. According to P, the relevant proportion would rather be 1% of the
transfer compensation.
8.
On 21 February 2008, the Football Association informed FIFA that according to P
payment of solidarity contribution would be made as soon as the correct amount
has been calculated.
9.
In spite of having been explicitly invited to do so, P has not presented its position
in this matter and/or a confirmation that the Football Association may act on its
behalf in front of FIFA.
10.
However, P did present a copy of the relevant transfer agreement signed on 12
July 2007, in accordance with which S and P agreed on a transfer compensation of
a fixed sum of EUR 10,000,000 payable in five equal instalments of EUR 1,600,000
falling due on 15 August 2007, 15 January 2008, 15 August 2008, 15 January 2009
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and 15 August 2009 and one instalment of EUR 2,000,000 falling due on 31
December 2009.
11.
The relevant transfer agreement contains the following additional monetary
clauses under its article 3:
“ 2) an Additional Transfer Fee: If the player is transferred from P Football Club to
an other club, P Football Club undertakes to pay the S a Additional Transfer Fee
calculated as follow: 10% (ten) of the added-value. The added-value will be
evaluated, if any, over the total fixed sum of 10,000,000 euros, as defined in point
1 of article 3. The added value will include all fixed and variable amounts of the
future transfer …”
“3) an Aleatory Indemnity of: If the player is not transferred before 30 June 2010,
the parties agree that on the first three occasions that P Football Club, is ranked
in the top 8 in the Premier League or qualifies for a European Cup (League of
Champions, UEFA including intertoto) for whatever reason whatsoever, if the
player has taken part in 50% of the matches of the Championship (Premier
League) in the season during this result has been achieved, P Football Club will
pay the sum of € 650 000 ex VAT to S before 30 June of the current season. This
sum of € 650 000 ex VAT could be paid three times at the S thus making it
possible the S to receive a total aleatory indemnity of € 1 950 000 ex VAT.”
“If the player is transferred to another club during its three years of contract in
favour of P Football Club, the parties expressly agree that:
If the player is transferred towards another club before June 30, 2008, P will pay
S the sum of € 1 950 000 or the 10% sell on whichever is greatest.
If the player is transferred towards another club before June 30, 2009, P will pay
S the sum of € 1 300 000 or the 10% sell on whichever is greatest.
If the player is transferred towards another club before June 30, 2010, P will pay S
the sum of € 650 000 or the 10% sell on whichever is greatest.”
12.
FIFA’s request for information on whether any of the aforementioned additional
monetary clauses have found application, the conditions contained therein
possibly having been fulfilled, has remained unanswered by P.
13.
No reaction has been received from L after having been informed of the
aforementioned financial terms of the relevant transfer agreement.
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 14 January 2008. Consequently, the Rules Governing the
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Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 18
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 2008) the Dispute Resolution Chamber is competent to decide on
the present litigation with an international dimension concerning the distribution
of the solidarity contribution claimed by the Claimant in connection with the
transfer of the professional U during the course of a contract.
3.
Furthermore, and taking into consideration that the player was registered with his
new club on or about 17 July 2007, 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 (edition 2008), considering that the present claim
was lodged on 14 January 2008, the previous version of the said regulations
(edition 2005; hereinafter: 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 the player, U, was transferred
from the F club, S, to P in summer 2007.
5.
To this end, S and P signed a transfer agreement in accordance with which S and P
agreed on a transfer compensation of a fixed sum of EUR 10,000,000 payable in
five equal instalments of EUR 1,600,000 falling due on 15 August 2007, 15 January
2008, 15 August 2008, 15 January 2009 and 15 August 2009 and one instalment of
EUR 2,000,000 falling due on 31 December 2009. The same agreement contains in
its article 3 additional monetary clauses, as set out under point I.11 above, the
application of which was made conditional on the occurrence of certain events.
6.
The members of the Chamber recalled that as established in art. 21 of the
Regulations in conjunction with art. 1 of Annex 5 of the Regulations, 5% of any
compensation (with the exception of training compensation) paid to the player’s
former club shall be deducted from the total amount of this compensation and
distributed by the player’s new club as a solidarity contribution to the club(s)
involved in the player’s training and education in proportion to the number of
years that the player has been registered with the relevant club(s) between the
sporting seasons of his 12th and 23rd birthdays.
7.
From the documentation in its possession, the Chamber took into account that P
does not deny that L is entitled to solidarity contribution in accordance with the
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Regulations. It rather appears that the clubs involved in the present dispute do
not agree on the calculation of the relevant proportion of 5% of the transfer
compensation.
8.
Consequently, the members of the Chamber turned to the calculation of the
amount of solidarity contribution due to L in accordance with art. 21 of the
Regulations in combination with Annex 5 of the Regulations. In this context, the
members of the Chamber pointed out that such calculation shall be based on the
relevant facts relating to the period of registration of the player in question with
L. The Chamber also referred to art. 1 of Annex 5 of the Regulations, which
provides the figures for the distribution of the solidarity contribution, according
to the time the player was registered with the club involved.
9.
Considering that the player, U, born on 8 January 1982, was registered with L as
from 31 July 2002 until 30 June 2005, the Chamber established that, in accordance
with art. 1 of Annex 5 of the Regulations, L is entitled to receive 29,16% of the
5% of the compensation (to be) paid in relation with the transfer of the player, U
a, from S to P.
10.
Reverting its attention to the compensation agreed upon between S and P in
accordance with the pertinent transfer agreement, the Chamber pointed out that
the fixed sum of EUR 10,000,000 is payable in six instalments, out of which the
amount of EUR 6,400,000 has fallen due to date. In this respect, the Chamber
emphasised that in accordance with art. 2 of Annex 5 of the Regulations, in case
of contingent payments, the new club shall pay the solidarity contribution no
later than 30 days after the date of such contingent payments. Consequently,
until the date of the present decision, the solidarity contribution relating to EUR
3,600,000 of the said fixed sum has not yet fallen due. Indeed, in accordance with
the transfer agreement one instalment of EUR 1,600,000 will fall due on 15
August 2009 and one instalment of EUR 2,000,000 will fall due on 31 December
2009. Consequently, the related solidarity contribution payments of 29,16% of 5%
of EUR 1,600,000 and of EUR 2,000,000 will fall due at the latest on 14 September
2009 and 30 January 2010, respectively.
11.
Based on all of the above, the Dispute Resolution Chamber decided that in
accordance with the Regulations P at present is liable to pay to L solidarity
contribution in the amount of EUR 93,312 (i.e. 29,16% of 5% of EUR 6,400,000).
12.
In addition, the Chamber decided that the 29,16% proportion of the 5% solidarity
contribution is payable by P to L over each and every payment (to be) made by P
to S in accordance with art. 3 of the pertinent transfer agreement setting out
additional monetary clauses (cf. point I.11 above), 30 days after each such
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additional payment having fallen due in accordance with the said art. 3 of the
transfer agreement.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, L, is partially accepted.
2.
The Respondent, PC, has to pay to the Claimant the amount of EUR 93,312 within
30 days as from the date of notification of the present decision.
3.
Any further request filed by L is rejected.
4.
If the sum of EUR 93,312 is not paid by P within the aforementioned deadline,
interest at the rate of 5% per year will apply as of expiry of the stipulated time
limit and the present matter shall be submitted upon request to FIFA’s Disciplinary
Committee for its consideration and decision.
5.
L is directed to inform P 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.
*****
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
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For the Dispute Resolution Chamber:
Jérôme Valcke
Secretary General
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