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
Thilina Panditharathne (Sri Lanka), member
Essa M. Saleh Al-Housani (United Arab Emirates), member
on a matter between the club,
B,
and the club,
G,
and the club,
I,
as Intervening party
regarding a solidarity contribution dispute related to the
transfer of the player L
I.
Facts of the case
1.
The Football Association of X (hereinafter: “FAX”) confirmed that the player L,
born on 9 May 1982, was registered with its affiliated club B (hereinafter: “B”) as
from 14 March 1996 until 31 December 1999 as an amateur.
2.
The sporting season in the country X runs as follows: a) for amateurs under 20
years of age as from January until December of the relevant year, and b) for
amateurs over 20 years of age and professionals as from 1 July until 30 June of the
following year.
3.
According to the Football Association Y (hereinafter: “FAY”), the player was firstly
temporarily registered with the club G (hereinafter: “G”) on 19 July 2006
consequently to a loan agreement between the club I (hereinafter: “I”) and the
club G. As a result of a new transfer agreement between the relevant parties
dated 6 June 2007, the player was permanently registered for the club G on 13
June 2007.
4.
On 17 November 2008, the club B contacted FIFA claiming its proportion of the
solidarity contribution in connection with the transfer of the player concerned
from the club I to the club G, for the alleged amount of USD 400,000.
5.
On account of the above, the club B requested the amount of USD 6,000.
6.
In its replica, the club G pointed out that when it was firstly informed of B’ claim,
it never received the player’s sportive passport it asked to be able to assess B’
potential right to claim any solidarity contribution. However, once it was informed
by FIFA, it believed that the claim was time-barred. Furthermore, the club G
clarified that 100% of the transfer compensation was paid to the player’s former
club, I, in other words, it omitted to deduct 5% relating to solidarity mechanism.
Consequently the club G wanted to hear I’s position.
7.
In its duplica, B informed FIFA that the claim regarding the definitive transfer to
the club G was not time-barred since the definitive transfer of the player occurred
in November 2007 (sic) and that the claim was lodged before FIFA on 17 November
2008.
8.
FIFA informed all the clubs involved of its jurisprudence, according to which the
player’s new club is ordered to remit the relevant proportion(s) of the 5%
solidarity contribution to the club(s) involved in the player’s training in strict
application of the relevant provisions of the Regulations on the Status and
Transfer of Players. At the same time, the player’s former club is ordered to
reimburse the same proportion(s) of the 5% of the compensation that it received
from the player’s new club. Therefore, FIFA invited the club G to distribute the
relevant proportion of the 5% solidarity contribution of the transfer compensation
to the club B, and club I to reimburse the club G the relevant proportion of the 5%
of the compensation agreed upon with it.
9.
The club G proposed that the club I should directly pay the solidarity contribution
in the amount of USD 4,500 to club B. Furthermore, it provided FIFA with the
relevant transfer agreement signed by the club G and the club I. According to art.
2 of the said agreement, the parties agreed that the club G would pay a transfer
compensation of USD 300,000 to the club I.
10.
The club I confirmed that the club G paid to the club I USD 300,000, without
deducting the 5% relating to solidarity contribution.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter: “DRC” or “the
Chamber”) analysed whether it was competent to deal with the matter at stake. In
this respect, it referred to art. 21 of the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber. The present
matter was submitted to FIFA on 17 November 2008, as a consequence, the
Chamber concluded that the revised Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (edition 2008;
hereinafter: “the Rules”) are applicable on 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 (editions 2008 and 2009). In
accordance with art. 1 par. 1 of the aforementioned Regulations, which describes
the scope and the field of application of the relevant Regulations, in connection
with articles 24 par. 1 and 22 d) of the said Regulations, the Dispute Resolution
Chamber shall adjudicate on disputes between two clubs in connection with an
international transfer of a professional player 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 in connection with the international transfer of the professional
football player, L.
4.
Furthermore, and taking into consideration that the player was permanently
registered for his new club on 13 June 2007, the Chamber analysed 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, it confirmed that in accordance with
art. 26 par. 1 and 2 of the Regulations for the Status and Transfer of Players, and
also considering that the present claim was lodged in front of FIFA on
17 November 2008, the 2005 edition of the said Regulations (hereinafter: “the
Regulations”) is applicable to the matter at hand as to the substance.
5.
In continuation, and entering into the substance of the matter, the members of
the Chamber started by acknowledging that the club B is requesting the payment
of USD 6,000 to the club G as solidarity contribution in connection with the
international transfer of the professional player L from the club I.
6.
Moreover, the Chamber duly noted that according to the FAY and the transfer
agreement, the player was loaned on 19 July 2006 from the club I to the club G
and that by the end of the loan period, i.e. on 6 June 2007, the player was
definitively transferred to the club G for the amount of USD 300,000.
7.
In continuation, the members of the Chamber emphasised that, as established in
art. 10 par. 1 and art. 21 of the Regulations in connection with Annex 5 of the
Regulations, if a professional 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 to 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.
8.
In this respect, the Chamber took due note that the FAX confirmed that the player
L, born on 9 May 1982, was registered with the club as from 14 March 1996 until
31 December 1999.
9.
In continuation, the Chamber duly noted that the club G asserted having paid the
entire amount of USD 300,000 agreed upon as transfer compensation to the club I.
In other words, the club G omitted to deduct 5% of the relevant transfer
compensation relating to the solidarity mechanism. Furthermore, the Chamber
noted that during the course of the proceedings in front of the DRC, the club G
proposed that the club I should pay the solidarity contribution (USD 4,500) directly
to player’s former club, i.e. B.
10.
Furthermore, the Chamber observed that the club I confirmed that it received USD
300,000 without any deduction of the 5% relating to solidarity contribution.
11.
In this respect, the Chamber noted that according to the relevant transfer
agreement, the club I and the club G agreed on a definitive transfer compensation
amounting to USD 300,000 of the said player’s “federative rights”.
12.
First and foremost, the Chamber was eager to emphasise that since 1 September
2001, the date of the entry into force of the completely reviewed version of the
FIFA Regulations for the Status and Transfer of Players (edition 2001) the concept
of the so-called “federative rights” to players does not exist anymore. It was
replaced by the principle of maintenance of contractual stability between the
contracting parties (cf. Chapter VIII, art. 21 and following of the 2001 Regulations
corresponding to Chapter IV, art. 13 of the Regulations). In particular, the
Chamber emphasised that a player and a club may only be contractually bound
due to a valid employment contract.
13.
Subsequently, it appears from the above-mentioned that solidarity contribution is
payable in the matter at hand and was not paid to the club B by the club G who
acknowledged having remitted the full payment to the club I.
14.
Hence, the Chamber referred to its well-established jurisprudence applied in
similar cases, in accordance with which the player’s new club, i.e. G, is ordered to
remit the relevant proportion(s) of the 5% solidarity contribution to the club(s)
involved in the player’s training in strict application of art. 1 and 2 of the Annexe
5 to the Regulations. At the same time, the player’s former club, i.e. I, is ordered
to reimburse the same proportion(s) of the 5% of the compensation that it
received from the player’s new club, i.e. G.
15.
As a result of the abovementioned and in consideration of the above-stated
jurisprudence, the Chamber firstly decided to reject G’s proposal to have a direct
payment between I and B.
16.
In continuation, in particular with reference to points II.7, 8, 9 and 10 (cf. supra),
the Chamber decided that B is entitled to receive USD 4,374 as solidarity
contribution from the transfer compensation paid for the transfer of the said
player.
17.
In addition to the foregoing, and in line with its longstanding jurisprudence, the
Dispute Resolution Chamber decided that G is liable to pay to B the amount of
USD 4,374 as solidarity contribution and that I must reimburse the amount of USD
4,374 to Germinal.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the club B is partially accepted.
2.
The club G has to pay to the club B the amount of USD 4,374, within 30 days as
from the date of notification of this decision.
3.
If the aforementioned sum is not paid within the aforementioned deadline, an
interest rate of 5% per year will apply as of expiry of the fixed time limit and the
present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee
for its consideration and a formal decision.
4.
The final amount of costs of the proceedings in the amount of CHF 4,000 are to be
paid by G, within 30 days of notification of the present decision to FIFA to the
following bank account with reference to case no. XXX:
UBS Zurich
Account number 366.677.01U (FIFA Players’ Status)
Clearing number 230
IBAN: CH27 0023 0230 3666 7701U
SWIFT: UBSWCHZH80A
5.
Any further claims lodged by the club B are rejected.
6.
The club B is directed to inform the club G 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.
7.
The club I has to reimburse the amount of USD 4,374 to the club G within 30
days as from the date of notification of this decision.
8.
If the aforementioned sum is not paid within the aforementioned deadline, an
interest rate of 5% per year will apply as of expiring of the fixed time limit and
the present matter shall be submitted, upon request, to FIFA’s Disciplinary
Committee for its consideration and a formal decision.
9.
The club G is directed to inform the club I 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.
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
CH-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