Solidarity Contribution
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 21 May 2010,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Joaquim Evangelista (Portugal), member
Johan van Gaalen (South Africa), member
Mario Gallavotti (Italy), member
Mohamed Mecherara (Algeria), member
on the claim presented by the club
P,
as Claimant
against the club
A,
as Respondent
regarding a dispute for solidarity contribution in connection with
the transfer of the player G
I.
Facts of the case
1.
According to the player passport issued by the X Football Confederation (XFC) in
August 2008, the player G (hereinafter: the player), born on 8 June 1980, was
registered with the club, P (hereinafter: the Claimant), as an amateur from 29 July
1997 until 12 May 1998.
2.
By means of this passport, the XFC also confirmed that the X sporting season
follows the calendar year. Therefore, it starts in January and ends in December of
each year.
3.
On 7 August 2006, the Y Football Federation (YFF) issued an International Transfer
Certificate (hereinafter: ITC) for the player – which used to be affiliated to the
club, B (hereinafter: B) – in favour of the Z Football Federation (ZFF). In this form,
the YFF indicated that a special agreement had been concluded, in accordance
with article 10 [Loan of professionals] of the Regulations for the Status and
Transfer of Players.
4.
On the same day, the player was registered with the club, A (hereinafter: the
Respondent), as a professional on a loan basis until 30 June 2007.
5.
On 9 July 2007, the player was registered on a permanent basis, with the
Respondent as a professional, and this retroactively as from 1 July 2007.
6.
On 20 May 2009, the Claimant submitted a formal claim requesting the
Dispute Resolution Chamber (DRC), to admit the following claim and to
pronounce a decision, as follows:
In case the Respondent does not submit a copy of the transfer agreement, the
alleged amount of EUR 750,000 as transfer compensation shall be taken into
account and the Respondent shall proceed with the prompt payment of the
amount of EUR 2,625, based on the permanent transfer of the player, due to the
Claimant, added by interest rates of 5% per year counted as from
September 2007, corresponding to 7% of the proportion of 5% of the total
transfer compensation.
7.
The Claimant alleges that in July 2007, the Respondent concluded an agreement
with B for the definitive transfer of the player and that the amount agreed
between the Respondent and B was disclosed by non-official media source as EUR
750,000.
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8.
Despite having been invited twice by FIFA to provide its position regarding the
claim of the Claimant, the Respondent never replied to the claim, nor made any
statements at all during the course of the investigation.
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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 case at hand. In this respect, it took note that the
present matter was submitted to FIFA on 20 May 2009, thus after 1 July 2008.
Consequently, the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (July 2008 edition; hereinafter:
the Procedural Rules) are applicable to the matter at hand (cf. art. 21 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 d) of the Regulations on the Status and Transfer of
Players (October 2009 edition), the Dispute Resolution Chamber is competent to
decide on the present litigation relating to solidarity mechanism between clubs
belonging to different associations, in connection with the transfer of the
professional player, G, during the course of his contract.
3.
Furthermore, and taking into consideration that the player was first registered
with the club, A (hereinafter: the Respondent), on 7 August 2006 on a loan basis
and then on 1 July 2007 on a permanent basis, and considering that the present
claim was lodged on 20 May 2009, 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 (edition 2005; hereinafter: the 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 as established in art. 21 in
connection with annex 5 of the Regulations, the new club of the player shall
distribute 5% of any compensation, with the exception of training compensation,
paid to the player’s former club to the club(s) involved in the training and
education of the player in proportion to the number of years (calculated pro rata
if less than one year) the player has been registered with the relevant clubs
between the sporting seasons of his 12th and 23rd birthdays.
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5.
In continuation, the members of the Chamber noted that the club, P (hereinafter:
the Claimant), claims from the Respondent payment of 7% of the proportion of
5% of the transfer compensation, i.e. 0.35% of the total transfer compensation
allegedly amounting to EUR 750,000, paid for the permanent transfer of the
player from the club, B (hereinafter: B), to the Respondent, i.e. EUR 2,625 as
solidarity contribution for the relevant months of the seasons 1997 and 1998, plus
interests at a rate of 5% per annum for unjustified delay in payment, counted as
from September 2007.
6.
On the other hand, the Chamber observed that the Respondent never took
position as to the substance of the dispute despite having been asked to do so by
FIFA on several occasions, renouncing in this way to its right to defence and
accepting the allegations of the Claimant (cf. art. 9 par. 3 in fine of the Procedural
Rules).
7.
In addition, the Chamber outlined that the period to be taken into consideration
for the calculation of the relevant amount of solidarity contribution has to be
determined in accordance with the confirmation issued by the X Football
Confederation (XFC). In this regard, the DRC drew its attention to the fact that the
XFC confirmed that the player, born 8 June 1980, was registered with the Claimant
as an amateur from 29 July 1997 until 12 May 1998.
8.
In view of all the above, the Chamber concluded that the Claimant is entitled to
receive the proportion of 7% of 5% of the amount of EUR 750,000 as solidarity
contribution in relation to the permanent transfer of the player from B to the
Respondent. Therefore, the Chamber decided that the Respondent has to pay to
the Claimant the amount of EUR 2,625 plus 5% interest per annum as of
1 September 2007, and thus, that the Claimant’s claim is accepted.
9.
In continuation, the deciding authority referred to art. 25 par. 2 of the
Regulations in combination with art. 18 par. 1 of the Procedural Rules, according
to which in the proceedings before the DRC relating to disputes regarding
solidarity mechanism, costs in the maximum amount of CHF 25,000 are levied. The
costs are to be borne in consideration of the parties’ degree of success in the
proceedings.
10.
In this respect, the Chamber reiterated that the claim of the Claimant is accepted.
Therefore, the Respondent has to bear the costs of the current proceedings in
front of FIFA.
11.
According to Annexe A of the Procedural Rules, the costs of the proceedings are
to be levied on the basis of the amount in dispute.
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12.
The amount in dispute to be taken into consideration in the present proceedings
amounts to EUR 2,625 related to the claim of the Claimant. Therefore, the
Chamber concluded that the maximum amount of costs of the proceedings
corresponds to CHF 5,000 (cf. table in Annexe A).
13.
Considering that the case at hand allowed to be dealt with following a reasonable
procedure, that the case was adjudicated by the Chamber, that the present case
did not show particular factual difficulty, that it did not involve specific legal
complexity and that the Respondent never participated in the proceedings, the
Chamber determined the final amount of costs of the current proceedings to the
amount of CHF 4,000.
14.
In view of all of the above, the Chamber concluded that the amount of CHF 4,000
has to be paid by the Respondent to cover the costs of the present proceedings.
Thereof the amount of CHF 4,000 has to be paid by the Respondent to FIFA.
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III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, P, is accepted.
2.
The Respondent, A, has to pay to the Claimant, P, the amount of EUR 2,625 plus
5% interest per annum as of 1 September 2007, within 30 days as from the date
of notification of this decision.
3.
If the aforementioned amount 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.
The final amount of costs of the proceedings in the amount of CHF 4,000 is to be
paid by the Respondent, A, within 30 days of notification of the present decision
to
the
following
bank
account
with
reference
to
case
nr. XX-XXXXX:
UBS Zurich
Account number 366.677.01U (FIFA Players’ Status)
Clearing number 230
IBAN: CH27 0023 0230 3666 7701U
SWIFT: UBSWCHZH80A
5.
The Claimant, P, is directed to inform the Respondent, A, 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.
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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
For the Dispute Resolution Chamber:
Jérôme Valcke
Secretary General
Encl.
CAS directives
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