Solidarity Contribution
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 6 May 2010,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Rinaldo Martorelli (Brazil), member
Brendan Schwab (Australia), member
Alejandro Marón (Argentina), member
Theodoros Giannikos (Greece), member
on the claim presented by the club,
A,
as Claimant
against the club,
D,
as Respondent
regarding a solidarity contribution dispute in connection with the
transfer of the player N
I.
Facts of the case
1.
The player, N (hereinafter: the player), was born on 11 November 1977.
2.
In accordance with the player passport issued by the Football Federation P (FFP) on
6 September 2006, the player was registered as a professional for the club, A
(hereinafter: A), from 15 September 1998 until 1 August 1999 and for the club, B
(hereinafter: B), from 26 October 1989 until 14 September 1998 as well as from 2
August 1999 until 6 August 2002.
3.
Additionally, as per request of club A, the FFP has declared that “despite of being
registered by club B for the 1996/97 and 1997/98 seasons, the athlete played in
club A. As a matter of fact and according to our regulations, club A was, until
season 1997/98, a branch of club B. Being so, club A usufructs, for all legal
matters, of the same rights and Corporate Entity as club B”.
4.
The relevant sporting seasons in country P lasted from 1 August until 31 July of the
following year.
5.
The player was transferred on 12 May 2005 from the club, O, to the club, D, for a
transfer compensation of EUR 15,176,400, payable as follows:
a) EUR 2,000,000 untill 27 May 2005;
b) EUR 2,000,000 until 28 June 2005;
c) EUR 1,530,000 until 18 August 2005;
d) EUR 400,000 until 24 August 2005;
e) EUR 1,570,000 until 23 September 2005;
f) EUR 360,000 until 29 September 2005;
g) EUR 7,316,400 until 23 December 2005.
6.
The Football Union of R confirmed that the player was registered for its affiliated
club, D, on 8 July 2005.
7.
On 15 July 2006, club A lodged a claim against club D before FIFA, asking for its
proportion of the solidarity contribution for the transfer of the player from FC O
to club D, which allegedly corresponds to 30% of the proportion of 5% of the
transfer compensation for the seasons 1996/1997, 1997/1998 and 1998/1999.
8.
In particular, club A claimed the amount of EUR 240,000 based on an alleged
transfer compensation of EUR 16,000,000.
9.
Club D rejected the claim of club A, affirming that, according to the player
passport issued by the FFP and currently at its disposal (cf. point n. I.2 above), the
player was registered for club A during the season 1998/1999 only and for club B
inter alia from 1 August 1996 until 15 September 1998. It added that the
calculation and distribution of the solidarity contribution among the clubs that
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took part in the education and training process of the player depends on the data
mentioned in the player passport.
10.
Club D further added that the club, B, was also claiming the distribution of
solidarity contribution for the period of time the player was allegedly registered
for it which, inter alia, included the seasons 1996/1997 and 1997/1998.
11.
In continuation and regarding the pertinent transfer compensation, club D
provided the relevant transfer agreement which stipulated an amount of EUR
15,176,400. Therefore, according to club D, club A would be entitled to EUR 75,882
being 10% of the proportion of 5% of the transfer compensation.
12.
Afterwards, club A adhered to its conclusions and stated that the solidarity
contribution requested corresponds to the three seasons during which the player
played and was trained exclusively by club A. In that regard, club A referred to the
declaration of the FFP (cf. point no. 3), which according to club A clearly
demonstrates that the player played exclusively for club A during said seasons, i.e.
the seasons 1996/1997 and 1997/1998. Furthermore, it alleged that the transfer
compensation as disclosed by club O to the P Securities Exchange Commission
amounted to EUR 16,000,000 and that such amount should be the official transfer
compensation to be taken into consideration.
13.
Club A was of the opinion that its right to receive solidarity contribution for the
seasons 1996/97, 1997/98 and 1998/99 was undisputable and presented a copy of a
decision on a case in which club A claimed solidarity contribution for the training
offered to the player and which presented similar facts to the case at hand. In that
decision, the Dispute Resolution Chamber recognized club A’s entitlement to
receive solidarity contribution for the seasons 1996/1997, 1997/1998 and 1998/1999
and granted the solidarity contribution related thereto.
14.
Moreover, club A emphasized that the jurisprudence of the DRC determines that
the solidarity contribution must be paid to the club that effectively trained the
player.
15.
Finally, club A amended its claim and requested the payment of interest of 5% as
of 16 July 2006.
16.
Later on, club D presented additional comments, by means of which it stated that
it had requested the player passport to the FFP (cf. point n. I.2 above) to calculate
and distribute the solidarity contribution, which established that the player was
registered for club A during the season 1998/1999 only and for club B during 11
seasons, among others, the seasons 1996/1997 and 1997/1998. Therefore,
according to club D and based on the player passport, club B was entitled to 90%
of the solidarity contribution and club A to 10%.
17.
Club D further explained that club B had already claimed its 5% of the solidarity
contribution and, based on the information on the player passport, which was the
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only document at its disposal at this stage, it agreed to pay the solidarity
contribution to club B including the solidarity contribution due for the seasons
1996/1997 and 1997/1998.
18.
Furthermore, club D referred to art. 2.2 of Annex 5 of the FIFA Regulations on
Status and Transfer of Players, as well as to the Commentary of the FIFA
Regulations, and considered the player passport as the basic and sole document to
be used for the calculation of the solidarity contribution. It also maintained that a
club cannot pay the solidarity contribution to two clubs for the same period.
Therefore, it concluded that club A would be entitled to 10% of the solidarity
contribution, which would correspond to EUR 75,882. Finally, club D underlined
that there was a clear discrepancy between the player passport and the facts
alleged by club A.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (DRC) analysed whether it was
competent to deal with the present matter. In this respect, it noted that the claim
at the basis of the present case was submitted to FIFA on 15 July 2006.
Consequently, the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (edition 2005; hereinafter: the
Procedural Rules) are applicable to the matter at hand (cf. article 21 par. 2 and 3
of the 2008 edition of the Procedural Rules in combination with article 18 par. 2
and 3 of the Procedural Rules).
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) 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 clubs belonging to
different associations. As a consequence, the Dispute Resolution Chamber
confirmed that it was the competent body to decide on the present litigation
involving a club and a club and concerning the distribution of the solidarity
contribution in connection with the international transfer of the professional
player N from a club to a club.
3.
Furthermore, and taking into consideration that the player was registered on 8
July 2005 for club D and that the present claim was lodged before FIFA on 15 July
2006, 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 above-mentioned facts as well as the documentation
submitted by the parties.
5.
First and foremost, the members of the Chamber went on to recall that according
to art. 21 of the Regulations in connection with 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.
6.
In this respect, the Chamber took into account that according to the transfer
contract concluded between the club, O, and the Respondent the player was
undoubtedly transferred for the amount of EUR 15,176,400.
7.
In continuation, the members of the Chamber acknowledged that the information
provided by the FFP through the player passport issued on 6 September 2006
establishes that the player was registered for club B during the seasons 1996/1997
and 1997/1998 and for A from 15 September 1998 until 2 August 1999.
8.
In this context, the Chamber took also note that, upon request of club A, the FFP
issued a statement informing that club A was in fact, and despite the contents of
the player passport, the club responsible for the training of the player during the
seasons 1996/1997, 1997/1998 and 1998/1999.
9.
In turn, the DRC observed that club A claims 30% of the proportion of 5% of the
total transfer compensation, alleging that it had trained the player for the three
following seasons: 1996/1997, 1997/1998 and 1998/1999.
10.
On account of the above, the DRC underlined that it remained undisputed that
the player was registered for club A during the season 1998/1999 and was
effectively trained by said club.
11.
In continuation, the Chamber held that it needed to establish whether club A was
entitled to receive solidarity contribution related to the relevant transfer for the
seasons 1996/1997 and 1997/1998.
12.
In this regard, the Chamber emphasised that, as a general rule and in accordance
with its jurisprudence, the crucial element to determine which club should be
compensated for the player’s training, should be the club which has effectively
been involved in the training and education of the player, particularly, considering
that the solidarity mechanism should benefit the clubs that have actually
contributed and invested in the training of a player.
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13.
Equally, the DRC referred to the article 2 of Annex 5 of the Regulations, which
inter alia stipulates that “the New Club shall pay the solidarity contribution to the
training club(s) (…)” and, subsequently that “it is the responsibility of the New
Club to calculate the amount of the solidarity contribution and to distribute it in
accordance with the player’s career history as provided for in the player passport.”
(emphasis added).
14.
Subsequently, it was acknowledged that club D accepted to distribute 10% of the
proportion of 5% of the total transfer compensation, i.e. an amount of EUR
75,882, to club A for the training incurred in the season 1998/1999 and that it had
already distributed 90% of the proportion of 5% to club B, based on the
information provided by the FFP in the player passport, including solidarity
contribution for the seasons 1996/1997 and 1997/1998.
15.
The DRC was eager to point out that, notwithstanding the fact that club A
appears to be in fact the club which effectively trained the player during the
seasons 1996/1997 and 1997/1998, by the time club D distributed the solidarity
contribution to club B, it had not been informed of the erroneous information
contained in the player passport issued by the FFP. Therefore, the DRC underlined
that club D relied on the official player passport issued by the FFP, as established
in the Regulations, and had no reason to doubt of its accuracy.
16.
The Chamber concluded that club D paid to club B the amount corresponding to
the solidarity contribution regarding the seasons 1996/1997 and 1997/1998, in
good faith according to the information provided by the FFP in the player
passport and thus in accordance with the Regulations. Club D, relying on an
official source, the FFP, paid to club B convinced it was the club entitled to receive
the relevant solidarity contribution.
17.
In continuation, the Chamber held that bearing in mind the behaviour of club D
which acted in compliance with the Regulations and distributed solidarity
contribution in conformity with the contents of the player passport, the latter
cannot be obliged to pay the same proportion of solidarity contribution referring
to the same period of time in favour of two different clubs, since it acted in good
faith and relied upon the official information of the FFP.
18.
On account of the above, the Chamber considered that, in view of the very specific
circumstances of the case at hand, club D cannot be obliged to distribute solidarity
contribution to club A related to the seasons 1996/1997 and 1997/1998, since the
relevant amount has already been paid to club B in accordance with the
Regulations.
19.
In addition, and with regard to club A’s claim for solidarity contribution for the
undisputed season 1998/1999, the Chamber recalled that, during the procedure of
the present matter, club D had agreed to pay an amount of EUR 75,882 as
solidarity contribution.
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20.
In view of the foregoing, the DRC concluded that club D had to pay solidarity
contribution to club A due for the uncontested season 1998/1999 in the amount of
EUR 75,882.
21.
Based on all of the above, the members of the Dispute Resolution Chamber
unanimously concluded that club D must pay to club A the total amount of EUR
75,882, plus 5% interest per year on the said amount as from 16 July 2006.
22.
Finally, on a side note, the DRC emphasized that any entitlement arising from the
circumstances of the present matter, which the two country P’s clubs may have
against each other, would have to be dealt with by the country P deciding bodies
at national level.
23.
In sum, the Chamber concluded that the claim of club A is partially accepted and
that any further request of club A is rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, club A, is partially accepted.
2.
The Respondent, club D, has to pay to the Claimant, club A, the amount of EUR
75,882, as well as 5% interest per year on the said amount as from 16 July 2006
until the date of effective payment, within 30 days as from the date of
notification of this decision.
3.
If the aforementioned sum is not paid within the aforementioned deadline the
present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee
for consideration and a formal decision.
4.
Any further claims lodged by the Claimant, club A, are rejected.
5.
The Claimant, club A, is directed to inform the Respondent, club D, 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 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
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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
Secretary General
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