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, X,
represented by Mr , attorney-at-law
and the club,
Y, Y,
and the club,
Z, X,
represented by Mr , attorney-at-law
as Intervening party
regarding the solidarity contribution related to the transfer of the player
..
I.
Facts of the case
1.
According to the official confirmation from the Xn Football Federation (player
passport), the Xn player .., born on 5 November 1983, was registered always as an
amateur, with the Xn club, UU, from 12 Mai 1993 until 2 April 1998.
2.
According to the written confirmation from the Xn Football Federation, the club
UU underwent a change of name into X per decision of the Urgency Committee of
the Xn Football Federation on 30 July 1997 [recte: 30 July 1998].
3.
According to the official confirmation from the Xn Football Federation (player
passport), the relevant player was registered with the club, X, from 31 July 1998
until 11 March 1999.
4.
In August 2003, the player was transferred from Z, X, to Y, YY.
5.
According to the signed transfer contract dated 19 July 2003 between K and Z on
the one side and Yon 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 K the amount of USD 455’000.00.
6.
On 22 February 2005, the X club, 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 .. from Z to Y.
7.
On 22 June 2005, the Y club informed that from the total transfer compensation
of USD 1’000’000.00 agreed for the transfer of the player .., it paid to Z the
amount of USD 545’000.00 and to K the amount of USD 455’000.00 based on the
transfer contract the three clubs signed on 19 July 2003. Moreover, the Y club
maintained that Z and K 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 K 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.”
8.
In this respect, Y submitted a proposal to solve the present case, which is that K
and Z should pay directly to X the requested amount as solidarity contribution.
Solidarity Contribution for the player ..
(X, Romania / Y, YY)
2
9.
In reply thereto, FIFA informed the clubs concerned by the present procedure of
the well-established jurisprudence of the Dispute Resolution Chamber applied in
cases in which the new club omitted to deduct the relevant proportion(s) of the
5% solidarity contribution from the compensation paid to the former club, and
invited them to consider it accordingly.
10.
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 X in order to
settle any liability towards X for solidarity contribution pursuant to the FIFA
Regulations.
11.
The proposal made by the Y club was, however, not accepted by K. Furthermore, X
deemed to be entitled to receive USD 5’502.26 as solidarity contribution.
12.
Y remained of its conviction 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 K.
13.
Subsequently, FIFA was also informed by X that, since it was not a party to the
relevant transfer agreement, it should be entitled to the solidarity contribution
that corresponds to the entire value of the transfer compensation paid, i.e. USD
1’000’000.00.
14.
Finally, the Y 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 ..
(X, Romania / Y, YY)
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 .. 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 K
on the one hand and Yon the other hand had been signed for the definitive
transfer of the player .. 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 K 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 continuation, the Chamber duly noted that Y, i.e. the player’s new club,
rejected the claim for solidarity contribution put forward by X maintaining that it
had paid the entire amount of USD 1’000’000.00, agreed upon as transfer
Solidarity Contribution for the player ..
(X, Romania / Y, YY)
4
compensation, to Z (USD 545’000.00) and K(USD 455’000.00) respectively and that
therefore, bearing also in mind the relevant clause of the transfer agreement, X
should turn to Z and K, i.e. the parties which in real terms conjointly transferred
the player, in order to obtain its proportion of the 5% solidarity contribution
payment. In other words, Y claimed having omitted to deduct 5% of the relevant
transfer compensation relating to the solidarity mechanism, while contractually
establishing that Z and K would make the relevant payments.
9.
In this respect, 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.
10.
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.
11.
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.
12.
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.
13.
To that regard, the members of 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. In this respect, the members took note of the written confirmation submitted
by the X Football Federation, according to which the club UU underwent a change
of name into X. The members concluded that this two clubs are therefore to be
considered the same legal entity. This fact was not contested. As a consequence,
the entire period of time during which the player in question had been registered
with both UU and X has to be taken into account for the calculation of the
solidarity contribution due to X.
Solidarity Contribution for the player ..
(X, Romania / Y, YY)
5
14.
In the present case, the Chamber outline that according to the player passport
submitted by the X Football Federation, the period to be taken into consideration
(period of registration of the player .. with the clubs UU and X) went from the
sporting season 1996/1997, when the player was 12, until 4 April 1998 with respect
to the period of time the player was registered with UU, and from 30 July 1998
until 11 March 1999 for the period the player was registered with X. To that
regard, the Chamber underlined that in accordance with art. 25 of the Regulations
and art. 10 of the Application Regulations, the period of time during which the
player had been registered with UU before being 12 years old cannot be taken
into account.
15.
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 9 months for UU and
7 months for X respectively, thus to a total of 2 years and 4 months, for the
player’s registration between his ages of 12 and 15.
16.
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 14.5% of 5% of the total compensation paid by the Y club in relation to
the transfer of the player .. from Z to Y.
17.
In this respect, and for the sake of good order, the deciding body explained that
the fact that, probably on the basis of a separate and preceding agreement
between Z and K, Y paid the agreed transfer compensation to two different clubs
is irrelevant. In fact, Y had agreed to acquire the services of the player for a total
amount of USD 1’000’000.00.
18.
As a result, the Dispute Resolution Chamber decided that Y must pay to X the
amount claimed by the latter, i.e. USD 5’502.26.
19.
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 2002), the Chamber referred to its aforementioned well-established
jurisprudence and stated that the amount Y is liable to pay to X, needs to be
refunded to it.
20.
In this respect, the deciding body acknowledged that the player’s actual former
club, Z, i.e. the last club the player had been registered with prior to his move to
Y, had only received 54,5% of the contractually agreed transfer compensation of
USD 1’000’000.00. The other 45,5% had been paid by the Y club to K. As a
consequence, the Chamber deemed it appropriate to impose the burden related
to the refund of the relevant proportion of the solidarity contribution on both the
aforementioned club’s, while respecting the relevant proportions of their
respective participation to the transfer compensation. According to the Chamber,
Solidarity Contribution for the player ..
(X, Romania / Y, YY)
6
such consideration appears to be appropriate since in case K had received the
relevant amount already at the time the player moved from the said club to the
next one, such amount of solidarity contribution would have been deducted as
well. Yet, it appears that, at the time of the player’s move away from it, K had
renounced to (a higher) compensation in exchange of a financial participation in
case of subsequent transfer.
21.
In line with the above considerations, the Chamber decided that the two clubs
involved in the transfer of the player in question to the Y club, i.e. Z and K, are
conjointly liable to reimburse to Y the amount of USD 5’502.26. The relevant
reimbursement of the said amount has to be effected in proportion to the
amounts Z and K respectively received as transfer compensation from Y, thus at
the ratio of 54.5% (Z) to 45.5% (K).
22.
Therefore, the deciding body concluded that Z has to reimburse the amount of
USD 2’998.75 (i.e. 54.5% of USD 5’502.26) and K the amount of USD 2’503.51 (i.e.
45.5% of USD 5’502.26) to Y.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of X is accepted.
2.
The Y club, has to pay the amount of USD 5’502.26 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 2’998.75 to Y within 30 days as from the
date of notification of the present decision.
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.
Solidarity Contribution for the player ..
(X, Romania / Y, YY)
7
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.
K has to reimburse the amount of 2’503.51 to Y within 30 days as from the date
of notification of the present decision.
9.
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.
10.
Y is directed to inform K 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.
11.
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 ..
(X, Romania / Y, YY)
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