Solidarity Contribution
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 30 May 2006,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Gerardo Movilla (Spain), Member
John Didulica (Australia), Member
Paulo Amoretty Souza (Brazil), Member
Ivan Gazidis (USA), Member
on a matter between the club,
X, ..,
represented by Mr X, attorney-at-law
and the club,
Y, ..,
and the club,
Z, ..,
represented by Mr ., attorney-at-law
as Intervening party
regarding the solidarity contribution related to the transfer of the player
OO
I.
Facts of the case
1.
According to the official confirmation from the ..n Football Federation (player
passport), the ..n player OO, born on 5 November 1983, was registered with the ..n
club, X, from 11 October 2000 until 14 August 2002.
2.
In August 2003, the player was transferred from Z, .., to Y, ...
3.
According to the signed transfer contract dated 19 July 2003 between X and Z on
the one side and Y on the other side, the transfer compensation agreed amounts
to USD 1’000’000.00 payable in two instalments. From the total transfer amount, Y
paid to Z the amount of USD 545’000.00 and to X USD 455’000.00.
4.
On 22 February 2005, the club, X, claimed from Y the 5% payment established in
article 25 of the FIFA Regulations for the Status and Transfer of Players (edition
September 2001) regarding the contribution to the solidarity mechanism related
to the transfer of the player OO from Z to Y.
5.
On 22 June 2005, the .. club informed that from the total transfer compensation
of USD 1’000’000.00 agreed for the transfer of the player OO, it paid to Z the
amount of USD 545’000.00 as well as to X USD 455’000.00 based on the transfer
contract the three clubs signed on 19 July 2003. Moreover, the .. club maintained
that Z and X agreed in the said transfer agreement that there would be no other
fee to be claimed from Y under whatsoever terms. The relevant clause in the
transfer contract reads as follows:
“Both Z and FC X hereby agree and covenant that there will be no
other fee to be claimed from Y under whatsoever terms, including
“training compensation fees” that may be claimed from any other
entity that may also not be part of this contract.”
6.
In this respect, Y submitted a proposal to solve the present case, which is that X
and Z should pay directly to K, another ..n club claiming for solidarity
contribution, the requested amount as solidarity contribution. On the other hand,
the .Y. club deemed that X is not entitled to participate to the solidarity
mechanism by reason of having signed the transfer contract for the transfer of the
player in question and therefore having already received its share of the relevant
transfer compensation.
7.
In reply thereto, FIFA informed the parties involved about the jurisprudence of the
Dispute Resolution Chamber in similar cases, in accordance with which the player’s
new club is ordered to remit the 5% solidarity contribution to the club(s) involved
Solidarity Contribution for the player OO
(X, .. / Y, ..)
2
in the player’s training in strict application of article 11 of the Regulations
governing the Application of the Regulations for the Status and Transfer of
Players (edition September 2001). In turn, the former club of the player is ordered
to refund the relevant amount of the compensation received to the new club.
8.
Z was requested to provide its position on the matter at hand. In its answer, Z
explained mainly that it would get in contact with the president of K, as
previously mentioned, another club claiming its share of the solidarity
contribution, in order to settle any liability towards K for solidarity contribution
pursuant to the FIFA Regulations.
9.
The proposal made by the .Y. club was, however, not accepted by X. Furthermore,
X deemed that it is entitled to receive USD 2’940.71 as solidarity contribution.
10.
Y remained of its conviction that X is not entitled to receive any solidarity
contribution since it has been a party to the transfer contract for the transfer of
the player in question which is at the basis of the present affair. Furthermore, it
reiterated that it deemed not being liable to pay any further amount than the
USD 1’000’000.00 it had already paid to the respective other parties to the
relevant transfer contract, i.e. Z and X.
11.
Subsequently, FIFA was informed by X that it considers itself not entitled to
receive any solidarity contribution for the amount it received in accordance with
the relevant transfer agreement, but should be entitled to the contribution that
corresponds to the amount paid to Z for the same transfer, i.e. USD 545’000.00.
12.
Finally, the .. club reiterated its position as already submitted in its previous
petitions.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Chamber analysed whether it was competent to deal with the
matter at stake. In this respect, it referred to art. 18 par. 2 and 3 of the Rules
Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber. The present matter was submitted to FIFA on 22 February
2005, as a consequence the Chamber concluded that the previous Procedural Rules
(edition 2001) on matters pending before the decision making bodies of FIFA are
applicable on the matter at hand.
2.
With regard to the competence of the Chamber, art. 25 par. 2 of the FIFA
Regulations for the Status and Transfer of Players (edition 2001) establishes that, it
Solidarity Contribution for the player OO
(X, .. / Y, ..)
3
falls within the purview of the Dispute Resolution Chamber to review disputes
concerning the distribution of the solidarity contribution.
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 claimed by X in connection with the transfer of the professional
player OO during the course of a contract.
4.
Subsequently, the members of the Chamber analyzed 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, the Chamber referred to art. 26 par. 1 and
2 of the Regulations for the Status and Transfer of Players (edition 2005) in the
modified version in accordance with the FIFA circular no. 995 dated 23 September
2005. Furthermore, it acknowledged that the professional had been registered for
his new club in August 2003. Equally the Chamber took note that the claim was
lodged at FIFA on 22 February 2005. In view of the aforementioned, the Chamber
concluded that the former FIFA Regulations for the Status and Transfer of Players
(edition 2001. hereafter: the Regulations) are applicable on the case at hand as to
the substance.
5.
In continuation, and entering into the substance of the matter, the members of
the Chamber carefully studied the facts outlined above, which show that the
player in question was transferred from Z to Y on a definitive basis in the summer
2003.
6.
The Chamber took note that to this end, a transfer agreement between Z and X
on the one hand and Y on the other hand had been signed for the definitive
transfer of the player OO to the aforementioned .Y club. Furthermore, the
members observed that from the total transfer compensation agreed, i.e. USD
1’000’000.00, Y paid to Z the amount of USD 545’000.00 and to X the amount of
USD 455’000.00, in compliance with the relevant contract.
7.
At this point, the Chamber recalled that, as established in art. 25 par. 1 of the
Regulations in connection with art. 11 par. 1 of the Regulations governing the
Application of the Regulations (edition 2001; hereinafter: the Application
Regulations), the new club of the player is to distribute 5% of any compensation
paid to the previous club 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 ages of 12 and 23.
8.
In this respect, the Chamber noted that Y, i.e. the player’s new club, rejected the
claim for solidarity contribution put forward by X, maintaining that it had already
paid the entire amount of compensation agreed for the transfer of the player in
Solidarity Contribution for the player OO
(X, .. / Y, ..)
4
question, i.e. USD 1’000’000.00 to both Z (USD 545’000.00) and X (USD 455’000.00).
Therefore, the .Y. club invoked that X, while acting as a contracting party
pertaining to the transfer of the player OO, had forfeited its right to claim for an
additional solidarity contribution.
9.
In this connection, the members of the Chamber took knowledge of X’s respective
statements in which it showed its firm conviction of being basically entitled to
participate to the solidarity contribution in relation to the transfer of the player in
question to Y although having been a party to the relevant transfer contract.
However, it was also noted by the members that X conceded that the calculation
of its proportion of solidarity contribution should be based only on the part of the
transfer compensation that was paid by Y to Z, i.e. USD 545’000.00. As a
consequence, X claims the amount of USD 2’940.71 as its proportion of the
solidarity contribution for the training it provided to the player.
10.
In continuation, after having noted the parties divergent positions with regard to
X’s entitlement to receive a proportion of the solidarity contribution, the members
of the Chamber stated that, from a formal point of view, the effective former club
of the player, before the latter being transferred to Y, had been, according to the
player passport provided by the ..n Football Federation, the ..n club, Z. That was
the last club he had been registered with. Therefore, strictly speaking, the transfer
of the player at the basis of the matter at stake, resulted in the payment of
transfer compensation paid by the player’s new club, i.e. Y, to the player’s former
club, i.e. only Z, in the amount of USD 545’000.00. This point of view corresponds
to the wording of art. 25 par. 1 of the Regulations, which states that 5% of any
compensation paid to the previous club will be distributed as solidarity
contribution.
11.
Furthermore, and as a logical continuation of its previous consideration, the
deciding body elucidated that the part of the transfer compensation paid by Y to
X, as explained before, formally speaking not the player’s former club, for the sake
of abstraction, needs to be considered as compensation in the scope of a particular
kind of financial participation to the subsequent transfer of the player agreed
between Z and the player’s preceding club, X, at an earlier stage (i.e. the moment
of the transfer between the two ..n clubs). In this respect, the members were
unanimously of the opinion that the said part of the transfer compensation
cannot be taken into consideration for the calculation of the solidarity
contribution due to X. In this respect, it was emphasized by the Chamber that such
appreciation was even shared by X itself. The members of the Chamber added in
this respect that X, by receiving USD 455’000.00 from Y for the transfer of the
player OO, had already been financially compensated. As previously mentioned,
such transfer compensation payment was, however, apparently effected by virtue
of probable preceding arrangements concluded between X and Z which, most
Solidarity Contribution for the player OO
(X, .. / Y, ..)
5
likely, must have been in connection with the transfer of the player at stake from
X to Z.
12.
As a result of all the above, the members unanimously reached the conclusion that
X, although having been a party to the transfer contract at the basis of the
player’s move to .Y., is basically entitled to receive solidarity contribution for the
training and education it provided to the player OO, however, only on the basis of
the compensation paid by Y to Z.
13.
In view of the above, the Chamber referred to its well-established jurisprudence
applied in similar cases, in accordance with 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 art. 11 of the Application
Regulations. 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.
14.
The said jurisprudence is based on the fact that there is no contractual link
between the training club claiming for solidarity contribution and the player’s
former club. Therefore, such a claim would not find any contractual basis. Yet, the
Regulations clearly establish that the distribution of the solidarity contribution is
incumbent on the new club. As a consequence, the Regulations provide for a legal
basis for the claim of the training club against the new club, yet not for a claim
against the player’s former club. Finally, the new club and the previous club are
bound by a contractual agreement, which needs to be respected.
15.
In light of the above, in particular the aforementioned well-established
jurisprudence of the Chamber, the members concluded that it is the responsibility
of the new club, i.e. Y, to pay the relevant proportion of the solidarity
contribution to X, which was involved in the player’s training. Furthermore, and
bearing in mind that the 5% solidarity contribution is to be deducted from the
amount payable to the player’s former club (cf. FIFA Circular nº 826, dated 31
October 2006), Z will have to refund the same proportion to Y.
16.
After having established Y’s obligation to distribute the relevant proportion of the
solidarity contribution to X, the Chamber went on to deliberate on the proper
calculation of the said proportion due to X.
17.
To that regard, the Chamber referred to art. 10 of the Application Regulations,
which provides the figures for the distribution of the solidarity contribution,
according to the time the player was effectively trained by a specific club.
Solidarity Contribution for the player OO
(X, .. / Y, ..)
6
18.
In the present case, the Chamber outline that according to the player passport
submitted by the ..n Football Federation, the period to be taken into account
went from 11 October 2000 until 14 August 2002, i.e. the time the player had been
registered with X.
19.
In light of all of the above, the Chamber decided that the period of effective
training to be taken into account corresponds to 1 year and 10 months, for the
player’s registration between his ages of 16 to 18.
20.
Therefore, the Chamber established that, in accordance with the breakdown
provided for in art. 10 of the Application Regulations, X is basically entitled to
receive 18.3% of 5% of the relevant part of the transfer compensation paid by Y
to Z in relation to the transfer of the player OO.
21.
Consequently, the Dispute Resolution Chamber decided that Y must pay to X the
amount claimed by the latter, i.e. USD 2’940.71.
22.
Furthermore, in line with the above considerations, the previous club of the player
that was involved in the transfer of the player in question to the .X. club, i.e. Z, is
liable to reimburse to Y the relevant amount of USD 2’940.71.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of X is accepted.
2.
The .. club, Y, has to pay the amount of USD 2’940.71 to X 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 to FIFA’s Disciplinary Committee, so that the
necessary disciplinary sanctions may be imposed.
4.
X is directed to inform Y directly and 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.
Z has to reimburse the amount of USD 2’940.71 to Y within 30 days as from the
date of notification of the present decision.
Solidarity Contribution for the player OO
(X, .. / Y, ..)
7
6.
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 to FIFA’s Disciplinary Committee, so that the
necessary disciplinary sanctions may be imposed.
7.
Y is directed to inform Z directly and 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 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:
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:
Urs Linsi
General Secretary
Encl.
CAS directives
Solidarity Contribution for the player OO
(X, .. / Y, ..)
8