Solidarity Contribution
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 13 May 2005,
in the following composition:
Slim Aloulou (Tunisia), chairman
Maurice Watkins (England), member
Paulo Amoretty Souza (Brazil), member
Gerardo Movilla (Spain), member
Theo van Seggelen (Netherlands), member
on the claim presented by
A
as Claimant
against
B
as Respondent
regarding the solidarity contribution related to the transfer of the player
C
Facts of the case
In June 2004, club D and B concluded an agreement for the transfer of the player C.
The Association E informed the FIFA Administration that C was born on 11 July 1984
and registered for A from 10 March 1997 until 10 March 1999, between the ages of
13 and 14.
A is presently claiming the implementation of the principles stipulated in art. 25 of
the FIFA Regulations for the Status and Transfer of Players (hereinafter: the
Regulations) regarding the contribution for the solidarity mechanism related to the
transfer of C to B.
The total amount paid by B for the relevant transfer of C was USD 7,500,000.
According to the Regulations, the new club concerned is to distribute 5% of this
compensatory amount to the club(s) where the player has played between the ages
of 12 and 23.
As a consequence, A is presently claiming the payment of the outstanding solidarity
contribution in the present matter, from B.
B informed the FIFA Administration that it has paid the entire transfer fee to D,
after having been informed by the latter that there would be no third clubs entitled
to claim any amounts connected with such transfer. In this respect, B underlines that
such statement was included in clause 1.8 of the relevant agreement.
As a consequence, B defends that D is the one responsible to pay the amount due as
solidarity contribution in the present matter.
Contacted by the FIFA Administration, D recognised having received the relevant
total transfer sum from B, but defended that, since it is the club responsible to pay
the claimed amount and since the claimant has also the same nationality, the
present matter should be considered as internal and FIFA should therefore, refrain
from intervening any longer, for lack of jurisdiction.
Considerations of the Dispute Resolution Chamber
The members of the Dispute Resolution Chamber were summoned to pass a decision
on this matter by the Chairman pursuant to art. 1 point 6) of the Rules Governing
the Practice and Procedures of the Dispute Resolution Chamber.
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After a careful analysis of the facts and allegations outlined above, the Dispute
Resolution Chamber commenced its deliberations by referring to art. 25 of the
Regulations, according to which it falls within the purview of the Dispute Resolution
Chamber to review disputes concerning the distribution of the solidarity
contribution.
Consequently, the Dispute Resolution Chamber established that it was the
competent body to decide on the present litigation concerning the solidarity
contribution claimed by A.
Once its competence was thus established, the Dispute Resolution Chamber went on
to deal with the substance of the case.
The members of the Chamber carefully studied the facts outlined above and
emphasized that, as further established in the art. 25 of the Regulations, the new
club to which a player is transferred during the course of an employment contract
with his previous club, is the club responsible for the distribution of 5% of the
compensation to the former club(s) where the player has trained between the age
of 12 and 23.
The Chamber pointed out that there has been an augmentation in the cases
relating to the non-payment of the solidarity contribution as foreseen in the FIFA
Regulations. This is owing to the fact that, as in the case at hand, the clubs
acquiring the federative rights to players frequently omit to retain the 5% solidarity
contribution payable to the clubs involved in the player’s training and education. In
such cases, the club that mistakenly paid 100% of the transfer fee agreed upon with
the former club of the player often considers it is no longer liable regarding the
solidarity contribution payment.
However, in this context, the Chamber emphasised that as provided for in art. 11 of
the Regulations governing the Application of the FIFA Regulations, it is the task of
the new club of the player to calculate the amount owed as a solidarity contribution
to the clubs involved in the formation of the player and to distribute this amount in
accordance with the player’s career history. Moreover, par. 1 of the mentioned
article clearly stipulates that the new club of the player must pay the amount due as
solidarity contribution to the training clubs within 30 days of the player’s
registration.
In light of the above, the Chamber concluded that B is responsible for paying the
solidarity contribution to the club(s) involved in the formation of C, even if it has
mistakenly omitted to retain this contribution amount when it paid the federative
rights of the player to his previous club. The fact that B paid the entire amount
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agreed upon to D has no influence on the claim of A, given that the latter was not a
party to the transfer agreement signed between B and D.
The Chamber subsequently referred to art. 10 of the Regulations governing the
Application of the FIFA Regulations, which provides the figures for the distribution
of the solidarity contribution, taking into consideration the time the player was
effectively trained by the club concerned.
Considering that C was registered with A from 10 March 1997 until 10 March 1999,
that is, for 2 seasons between the ages of 13 and 14 years, 15% of the 5% solidarity
contribution shall be apportioned to this club.
As it was ascertained that the amount paid by B to D for the federative rights of C
was USD 7,500,000, 15% of the 5% solidarity contribution amounts to USD 56,250.
In light of the above, the Chamber decided that B is liable to pay the amount of
USD 56,250 to A.
Notwithstanding the above, the Chamber emphasized that, in its answer, B called D
to intervene in the present matter, by stating that the latter would be responsible
to cancel any amounts due as solidarity mechanism for the transfer of the federative
rights of C, in accordance with the relevant transfer agreement signed between
them.
In this respect, and after having analysed the position of D in the matter, the
Chamber started by considering that the latter’s arguments were not acceptable,
since it has, without a doubt, unduly received the aforementioned amount of
USD 56,250 from B, which was due to A instead.
Furthermore, the Chamber confirmed the international nature of the present
dispute, based on the nationality of the parties, respectively, X and Y.
In view of all the above, the Dispute Resolution Chamber ruled that D shall be held
to return the amount of USD 56,250 to B.
Decision of the Dispute Resolution Chamber
1.
The claim of A is accepted.
2.
The Respondent B shall pay the amount of USD 56,250 to the Claimant A
within 30 days of notification of the present decision.
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3.
If the Respondent fails to comply with the above-mentioned deadline, an
interest rate of 5% per year will apply and the case will immediately be
presented to the FIFA Disciplinary Committee.
4.
The Claimant is directed to inform the Respondent immediately of the account
number to which the remittance is to be made and to notify the Dispute
Resolution Chamber of every payment received.
5.
D shall return to B the amount of USD 56,250, within 30 days of notification
of the present decision.
6.
If D fails to comply with the above-mentioned deadline, an interest rate of
5% per year will apply and the case will immediately be presented to the FIFA
Disciplinary Committee.
7.
The Respondent is directed to inform D immediately of the account number to
which the remittance is to be made and to notify the Dispute Resolution
Chamber of every payment received.
8.
According to art. 60 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 10 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:
Avenue de Beaumont 2
1012 Lausanne
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
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For the Dispute Resolution Chamber:
Jérôme Champagne
Deputy General Secretary
Enclosed: CAS directives
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