Solidarity Contribution
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 28 May 2010,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Gerardo Movilla (Spain), member
David Mayebi (Cameroon), member
Essa M. Al-Housani (United Arab Emirates), member
Thilina Panditharathne (Sri Lanka), member
on the claim presented by the
Football Union N,
as Claimant
against the club
M FC,
as Respondent
regarding solidarity contribution related to the transfer
of the player P
I.
Facts of the case
1.
The Football Union N (hereinafter: the FUN or the Claimant) confirmed that the
player P (hereinafter: the player), born on 15 January 1979, was registered for its
affiliated club, Club B (hereinafter: B), as from 1 July 1990 until 1 January 1997.
2.
The season in the Football Union N runs from 1 July until 30 June of the following
year.
3.
The player was registered for M FC (hereinafter: the Respondent) on 3 August
2007.
4.
On 29 September 2008, the Claimant contacted FIFA claiming a proportion of the
solidarity contribution in connection with the transfer of the player from the club,
S, to the club, M FC, on 31 July 2007.
5.
In this respect, the Claimant stated that the player had been registered for its
affiliate, Club B, from 1 July 1990 until 1 January 1997 and that the said club had
ceased to exist since the end of the season 2003/2004. In this respect, the Claimant
provided FIFA with a copy of the player passport attesting that the player had
been trained by Club B during the relevant period of time. Additionally, the
Claimant remitted a copy of letters dated 18 and 30 July 2008, by means of which
the end of the existence of Club B could be noted. Thus, the Claimant requested
the payment of a percentage of 40% of the proportion of 5% of the relevant
transfer compensation, plus 5% of interest, for the training and education offered
to the player by Club B between 1 July 1990 until 1 January 1997.
6.
On 10 November 2008, the Respondent remitted to FIFA, via The Football
Association E, a copy of the pertinent transfer agreement concluded between it
and the player’s former club, Club S, by means of which the two clubs agreed
upon a transfer compensation amounting to EUR 7,000,000 payable in three equal
installments of EUR 2,333,333 each on 31 July 2007, 31 July 2008 and 31 July 2009.
In this respect, The Football Association E informed FIFA that the Respondent had
transferred an amount of EUR 52,546.66 to the Claimant apparently in relation to
the second installment of the transfer compensation. Likewise, the Respondent
attached a letter, dated 20 March 2008, from Mr G, allegedly on behalf of Club B,
by means of which the latter requested the payment of solidarity contribution in
relation with the transfer from Club S to the Respondent. Finally, The Football
Association E acknowledged that the Respondent had distributed the solidarity
contribution in connection with the first instalment of the total transfer
compensation to Club B.
7.
On 11 November 2008, the Claimant informed FIFA that it had received the
payment of an amount of EUR 52,531.66.
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8.
On 20 November 2008, the Claimant amended its claim and requested the
payment of a percentage of 45% of the proportion of 5% of the transfer
compensation. Thus, the Claimant claimed the payment of EUR 52,500 as solidarity
contribution in connection with the second instalment (sic) of the relevant transfer
compensation, plus 5% of interest as from 30 August 2008. In this context, the
Claimant maintained having received the payment of solidarity contribution from
the Respondent related to the first instalment of the transfer compensation (cf.
point no. I./6. and I./7.).
9.
On 4 May 2009, the Claimant acknowledged having received a portion of solidarity
contribution, in line with the Respondent’s assertions, in connection with the
second instalment of the transfer compensation (cf. points no. I./6. to I./8.).
Furthermore, the Claimant was of the opinion that the Respondent, when it
distributed a portion of solidarity contribution to Club B, acted by “gross
negligence” by allegedly omitting to request a copy of the player passport to the
Claimant in accordance with art. 7 of the Regulations on the Status and Transfer of
Players in order to determine the correct creditors and to calculate the amount of
solidarity contribution. The Claimant also forwarded a copy of a correspondence
dated 14 April 2008 apparently addressed by Mr G to the Respondent, by means of
which Mr G stated that he had been recently informed by the Claimant that Club B
was no longer affiliated to the Football Union N. Thus, the Claimant asserted that
it was entitled to receive solidarity contribution in relation with the first
instalment of the transfer compensation, since the payment of the said proportion
of the solidarity contribution to the wrong creditor does not discharge the new
club from paying solidarity contribution to the correct creditor. In the Claimant’s
opinion, quoting a decision of the Dispute Resolution Chamber, “the defective
performance of an obligation corresponds to the facts of non-fulfillment of an
obligation”.
10.
On account of the foregoing, the Claimant maintained that the solidarity
contribution distributed to Club B in relation to the first instalment of the transfer
compensation paid by the Respondent to Club S had been incorrectly made.
Therefore, the Football Union N requested the payment of an amount of EUR
52,546.66, plus 5% of interest as from 3 September 2007.
11.
On 11 September 2009, the Claimant informed FIFA that it had received the full
payment of solidarity contribution related to the third instalment of the pertinent
transfer compensation from the Respondent.
12.
In its final position, the Respondent adhered to its previous statement and
reiterated that the first and now only disputed payment of solidarity contribution
related to the first instalment of the transfer compensation had been made in
good faith through The Football Association E to Club B. The Respondent
emphasized that it had made the relevant payment to Club B (N.B. In this respect,
The Football Association E confirmed that the payment of solidarity contribution
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in relation with the first instalment to Club B had been made on 18 September
2007 via its clearing house), which appeared to have been involved in the player’s
training, according to the player passport issued by the Football Union N as well as
a correspondence from G Sports dated 20 March 2008. Furthermore, the
Respondent held that it had been aware of the legal situation of Club B, when the
second instalment was due only, i.e. in July 2008, and since that date, it had made
the payments of solidarity contribution in favour of the Football Union N. Finally,
the Respondent declared that, by having discharged its obligations, it could not be
expected to make the payment twice. Therefore, the Respondent was of the
opinion that that the matter at hand had to be solved internally between the
Football Union N and its former member club.
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, the Chamber referred to art. 21 par. 1
and 2 of the Rules Governing the Procedures of the Players’ Status Committee and
the Dispute Resolution Chamber (edition 2008; hereinafter: Procedural Rules). The
present matter was submitted to FIFA on 29 September 2008, thus after 1 July
2008. Consequently, the Chamber concluded that the 2008 edition of the
Procedural Rules is applicable to the matter at hand.
2.
Subsequently, the members of the Chamber referred to article 3 par. 1 of the
Procedural Rules and confirmed that in accordance with art. 24 par. 1 in
connection with art. 22 lit. d) and art. 2 par. 3 of Annexe 5 of the Regulations on
the Status and Transfer of Players (edition 2009), the Dispute Resolution Chamber
shall adjudicate on disputes relating to the solidarity mechanism between an
association and a club belonging to another association. As a consequence, the
Dispute Resolution Chamber confirmed that it was the competent body to decide
on the present litigation involving the Football Union N and a club, M FC, and
concerning the distribution of the solidarity contribution in connection with the
international transfer of the professional player P to a club.
3.
Furthermore, and taking into consideration that the player was registered on 3
August 2007 for the Respondent and that the pertinent transfer compensation
was due in three instalments and that the first – and only disputed – instalment of
the relevant transfer compensation was due on 31 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 (editions 2009 and 2008), the
previous version of the regulations, the FIFA Regulations for the Status and
Transfer of Players (edition 2005; hereinafter: the Regulations) is applicable to the
matter at hand as to the substance.
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4.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter and started by
acknowledging the facts of the case as well as the documentation submitted by
the parties.
5.
First and foremost, the Chamber recalled that the Claimant was claiming the
payment of solidarity contribution in connection with the transfer of the player
from the club, S, to the club, M FC, for the training and education of the player
offered by its former member, Club B, which had trained the player from 1 July
1990 until 1 January 1997 and ceased to exist since the season 2003/2004.
6.
This being briefly summarised, the members of the Chamber went on to recall that
according to art. 21 of the Regulations in connection with the Annexe 5 of the
Regulations, if a professional player moves during the course of a contract, 5% of
any compensation, not including training compensation paid to his former club,
shall be deducted from the total amount of this compensation and be distributed
by the new club as solidarity contribution 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 sporting seasons of his 12th
and 23rd birthday.
7.
However, the Chamber underlined that in the present case, it was the Football
Union N, i.e. an association, and not a club, which claimed the payment of the
relevant solidarity contribution. Therefore, it had in particular to analyse whether
the conditions set forth in art. 2 par. 3 of Annex 5 of the Regulations were
fulfilled.
8.
The Chamber recapitulated that the aforementioned provision stipulates that if a
link between a professional and any of the clubs that trained him cannot be
established within 18 months of his transfer, the solidarity contribution shall be
paid to the association(s) of the country where the professional was trained.
9.
On this basis, the Chamber pointed out that, at first, it had to analyse whether the
time frame of 18 months for the possible establishment of a link between a
professional player and a club had already elapsed after the transfer of the player
to the Respondent, which was a prerequisite contained in art. 2 par. 3 of Annex 5
of the Regulations.
10.
To that regard, the members of the Chamber recalled that, according to the
statement of the Claimant itself presented during the course of the present
procedure, Club B ceased to exist since the end of the season 2003/2004.
Therefore, in view of the specific circumstances of the case, i.e. the club in
question does no longer exist, the DRC was of the opinion that, provided the
other mandatory conditions are fulfilled, the solidarity contribution might be
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claimed without having to await the expiry of a period of 18 months. Thus, the
DRC considered that it did not have to analyse whether a period of time of 18
months had elapsed in casu.
11.
This being established, the Chamber took into account that according to the
transfer contract concluded between the Club S, and the Respondent the player
was undoubtedly transferred for the total transfer compensation of EUR 7,000,000
payable in three equal installments of EUR 2,333,333 each due on 31 July 2007, 31
July 2008 and 31 July 2009.
12.
In continuation, the members of the Chamber acknowledged that the information
provided by the Football Union N in the player passport revealed that the player
was registered for its affiliated club, Club B, as from 1 July 1990 until 1 January
1997. The Chamber was also eager to emphasize that the player passport at its
disposal did not make any mention of the cessation of existence of the said club.
In this respect, the DRC observed that this element was only mentioned by the
Claimant in its original claim as well as in two correspondences enclosed dated 8
and 30 July 2008.
13.
Equally, the DRC took note that the Claimant acknowledged having received the
pertinent proportion of solidarity contribution related to the second and third
instalments from the Respondent. Therefore, the object of the present dispute
pertained to the payment of solidarity contribution by the Respondent in relation
with the first instalment of the pertinent transfer compensation.
14.
To that regard, the DRC turned its attention on the allegations of the Respondent
and firstly noted that the latter held having distributed the pertinent proportion
of solidarity contribution to Club B in relation to the first instalment of the
transfer compensation. According to the Respondent, this payment had been
made in good faith via The Football Association E to Club B.
15.
The Chamber took also note of the Respondent’s assertions, according to which it
had made the relevant payment to Club B, which appeared to have been involved
in the player’s training, according to the player passport issued by the Football
Union apparently at its disposal. Furthermore, the DRC noted that the Respondent
had been aware of the legal situation of Club B in July 2008 only, i.e. when
solidarity contribution pertaining to the second instalment of the transfer
compensation was due. Besides, the Chamber noticed that as from this moment,
the Respondent executed the payment of solidarity contribution in connection
with the second and third instalments of the total transfer compensation to the
Football Union N in compliance with the Annex 5 of the Regulations. In that
respect also, the Chamber lent emphasis on the fact that the documents submitted
by the Claimant, which made mention of the cessation of existence of Club B were
dated 8 and 30 July 2008.
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16.
Having recalled the foregoing elements, the DRC was eager to point out that,
notwithstanding the fact that Club B appears to have ceased to exist for quite a
long period of time at the moment solidarity contribution in relation with the first
instalment of the transfer compensation was due in August 2007, the Respondent,
by no means, could have been aware of the foregoing. Indeed, the player passport
at its disposal seemed to be a valid document bearing the stamp of the Football
Union and made no mention of the cessation of existence of Club B.
17.
Thus, in view of the foregoing, the Chamber had no doubt that, when the
Respondent distributed the solidarity contribution to Club B, upon request of the
latter and on the basis of the player passport issued by the Football Union N , it
acted in good faith and in compliance with the Regulations. In other words, the
Chamber considered that the Respondent had not been informed, at this stage, of
the erroneous, respectively lack of, information contained in the player passport
issued by the Football Union N . What is more, the sole documents establishing the
cessation of the existence of Club B and at the disposal of members of the DRC are
dated July 2008. Therefore, the DRC underlined that the Respondent relied on the
official player passport issued by the Football Union N, as established in the
Regulations, and had no reason to doubt of its accuracy. This fact is also
corroborated by the Respondent’s behaviour, which, as soon as it was aware of
the legal situation of Club B, complied with the Regulations and distributed the
relevant portions of solidarity contribution to the Football Union N.
18.
The Chamber concluded that the Respondent had paid to Club B the amount
corresponding to the solidarity contribution due on the basis of the payment of
the first instalment of the transfer compensation, in good faith according to the
information provided by the Football Union N in the player passport, provided by
Club B and thus, in accordance with the Regulations. The Respondent, relying on
an official source at its disposal, from the Football Union N, paid to Club B
convinced it was the club entitled to receive the relevant solidarity contribution.
19.
In continuation, the Chamber held that bearing in mind the behaviour of the
Respondent which in good faith acted according to the Regulations and
distributed solidarity contribution in conformity with the contents of the player
passport issued by the Football Union N, the latter cannot be obliged to distribute
solidarity contribution to the Football Union N related to the first instalment of
the transfer compensation, since the relevant amount has already been paid to
Club B in accordance with the Regulations.
20.
In view of all the foregoing, the Dispute Resolution Chamber concluded that the
claim of the Claimant had to be rejected.
21.
Finally, the Chamber referred to art. 18 par. 1 of the Procedural Rules, according
to which in the proceedings before the Dispute Resolution Chamber relating to
disputes regarding the solidarity mechanism costs in the maximum amounts of
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CHF 25,000 are levied. The costs are to be borne in consideration of the parties’
degree of success in the proceedings.
22.
In this respect, the Chamber reiterated that the claim of the Claimant is rejected.
Therefore, the Claimant has to bear the costs of the current proceedings in front
of FIFA.
23.
According to Annex A of the Procedural Rules, the costs of the proceedings are to
be levied on the basis of the amount in dispute.
24.
The amount in dispute to be taken into consideration in the present proceedings
amounts to EUR 52,546.66 related to the claim of the Claimant. Therefore, the
Chamber concluded that the maximum amount of costs of the proceedings
corresponds to CHF 10,000 (cf. table in Annex A).
25.
Considering that the case at hand showed some particular factual and legal
difficulty, the Chamber determined the final amount of costs of the current
proceedings to the amount of CHF 5,000.
26.
In this respect, the Chamber took into account that the Claimant paid the advance
of costs in the amount of CHF 2,000 in accordance with art. 17 of the Procedural
Rules.
27.
In view of all the above, and bearing in mind that the claim of the Claimant was
rejected in full, the Chamber concluded that the amount of CHF 5,000, of which
CHF 2,000 have already been paid by the Claimant, has to be paid by the Claimant
to cover the costs of the present proceedings.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, the Football Union N, is rejected.
2.
The final amount of costs of the proceeding in the amount of CHF 5,000, of which
CHF 2,000 have already been paid by the Claimant, the Football Union N, are to be
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paid by the Claimant, the Football Union N, within 30 days of notification of the
present decision as follows 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
*****
Note relating to the motivated decision (legal remedy):
According to article 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,
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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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