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. Saleh Al-Housani (United Arab Emirates), member
Thilina Panditharathne (Sri Lanka), member
on the claim presented by the club,
A,
as Claimant
against the club,
C,
as Respondent
regarding a solidarity contribution dispute in connection with the
transfer of the player R
I.
Facts of the case
1.
The player, R (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 the club A, the FFP has declared that “despite of
being registered by the club B for the 1996/97 and 1997/98 seasons, the athlete
played in the club A. As a matter of fact and according to our regulations, the club
A was, until season 1997/98, a branch of the club B. Being so, the club A usufructs,
for all legal matters, of the same rights and Corporate Entity as B”.
4.
The relevant sporting seasons in the country P lasted from 1 August until 31 July of
the following year.
5.
The player was transferred on a loan basis on January 2006 from the club, M, to
the Club, C (hereinafter: C), for a transfer compensation of EUR 2,000,000.
6.
The Football Association C (FAC) confirmed that the player was registered for its
affiliated club, C, on 5 January 2006.
7.
On 13 March 2007, the club A lodged a claim against the club C before FIFA,
asking for its proportion of the solidarity contribution for the transfer of the
player from the club M to the club C, which allegedly corresponds to 30% of the
proportion of 5% of the loan compensation for the seasons 1996/1997, 1997/1998
and 1998/1999.
8.
In particular, the club A claimed the amount of EUR 30,000 based on an alleged
loan compensation of EUR 2,000,000. Furthermore, the club A requested the
payment of interest of 5% as of 28 February 2006.
9.
In its claim, the club A explained that it had already requested the club C the
payment of the relevant solidarity contribution, which informed the club A that it
had already paid the full amount corresponding to 5% of the transfer
compensation to the club, B (hereinafter: B).
10.
On 18 April 2007, the club C presented its position, informing that it paid the
solidarity contribution to the club B and, for that reason, it had asked the club B to
either make the appropriate payment to the club A or reimburse the club C.
11.
On 3 March 2008, the 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 the club A. In that regard, the
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club A referred to the declaration of the FFP (cf. point no. 3), which according to
the club A clearly demonstrates that the player played “exclusively and solely” for
the club A during the seasons 1996/1997 and 1997/1998, even though he was
registered for the club B, as well during the season 1998/1999.
12.
The club A asserted that the FFP explained that an internal regulation allowed
clubs from lower divisions to enter into agreement with upper division clubs to
receive players that were registered with the latter clubs on loan without
registration.
13.
The 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 the 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 the club A
entitlement to receive solidarity contribution for the seasons 1996/1997, 1997/1998
and 1998/1999 and granted the solidarity contribution related thereto.
14.
Moreover, the 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.
Later on, the club C presented additional comments, by means of which it stated
that, following the loan agreement regarding the player concerned, the club, B,
had claimed the payment of the solidarity contribution. Moreover, it explained,
providing a copy of the relevant document, that, on 23 March 2006, the club C and
the club B concluded a financial agreement in which it was established that the
club C would pay EUR 100,000 to the club B as solidarity contribution, through
FAC. Additionally, it alleged that only on 22 January 2007 it was contacted by the
club A regarding the payment of the solidarity contribution.
16.
In this context, the club C held that it had paid the full solidarity contribution to
the club B in good faith and, at that time, it was not aware that the player had
been registered with the club A for part of the relevant period. Finally, it raised
the question that the matter in dispute appears to be an internal matter.
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 13 March 2007.
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).
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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 R from a club to a club.
3.
Furthermore, and taking into consideration that the player was registered on 5
January 2006 for the club C and that the present claim was lodged before FIFA on
13 March 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.
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, M, and the Respondent, the player was
undoubtedly transferred for the amount of EUR 2,000,000.
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 the club B during the seasons
1996/1997 and 1997/1998 and for the club A from 15 September 1998 until 2
August 1999.
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8.
In this context, the Chamber took also note that, upon request of the club A, the
FFP issued a statement informing that the 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 the 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 the 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 the 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.
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 the club C had already distributed 100%
of the proportion of 5% of the total loan compensation, i.e. an amount of EUR
100,000, to the club B, including the solidarity contribution for the seasons
1996/1997, 1997/1998 and 1998/1999.
The DRC was eager to point out that, notwithstanding the fact that the 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 the club C distributed the solidarity
contribution to the club B, it had not been informed of the erroneous information
contained in the player passport issued by the FFP nor it had been contacted by
the club A.
15.
16.
The Chamber concluded that the club C paid to the club B the amount
corresponding to the solidarity contribution regarding the seasons 1996/1997 and
1997/1998, in good faith and in accordance with the information provided by the
FFP in the player passport and thus in accordance with the Regulations. The club C,
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relying on an official source, the FFP, paid to the 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 the club
C, 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, C cannot be obliged to distribute solidarity
contribution to A related to the seasons 1996/1997 and 1997/1998, since the
relevant amount has already been paid to B in accordance with the Regulations.
19.
In addition, and with regard to A’s claim for solidarity contribution for the season
1998/1999, the Chamber asserted that, in accordance with the player’s passport
issued by the FFP, the player was registered for A in the period from 15 September
1998 until 1 August 1999.
20.
In this regard, the members of the DRC held that the payment to B was made
regardless of the information contained in the player’s passport. C paid the
solidarity contribution regarding the season 1998/1999, in particular, regarding
the period between 15 September 1998 and 1 August 1999, to B, whereas the
player was registered for A (cf. information contained in the player’s passport).
Therefore, regarding such period, C erroneously paid the relevant amount of
solidarity contribution to B.
21.
In view of the foregoing, the DRC concluded that C incorrectly paid the
corresponding amount of solidarity contribution to B and, consequently, had to
pay solidarity contribution to A due for the season 1998/1999 in the amount of
EUR 9,160.
22.
Based on all of the above, the members of the Dispute Resolution Chamber
unanimously concluded that C must pay to A the total amount of EUR 9,160, plus
5% interest per year on the said amount as from 28 February 2006.
23.
Finally, on a side note, the DRC emphasized that any entitlement arising from the
circumstances of the present matter, which the two country P clubs may have
against each other, would have to be dealt with by the country P deciding bodies
at national level.
24.
In sum, the Chamber concluded that the claim of A is partially accepted and that
any further request of A is rejected.
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III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, A, is partially accepted.
2.
The Respondent, C, has to pay to the Claimant, A, the amount of EUR 9,160, as
well as 5% interest per year on the said amount as from 28 February 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
Committee for consideration and a formal decision.
4.
Any further claims lodged by the Claimant, A, are rejected.
5.
The Claimant, A, is directed to inform the Respondent, C, 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
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
7
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
Markus Kattner
Deputy Secretary General
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