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 the claim presented by the club
X,
as Claimant
against the club
Y,
as Respondent
regarding the solidarity contribution related to
the transfer of the player A
I.
Facts of the case:
1.
The Football Association of XXXX confirmed that the player A, born on 9
November 1978, was registered with its member club X, the Claimant, as from 7
December 1998 until 30 December 2001 that is, for 3 years between the ages of 20
and 23.
2.
According to the relevant transfer contract concluded between xxxx from XXXX
and the club Y, the Respondent, the player was transferred in March 2004 for the
amount of USD 350,000.
3.
On 2 March 2004, the Claimant contacted FIFA requesting 30% of 5% of the
transfer compensation paid by the Respondent to xxxxx, plus 5% interest for late
payment and the reimbursement of the legal expenses.
4.
FIFA invited the Respondent on 7 June and 20 July 2005 to pay the relevant
solidarity contribution. Moreover, FIFA invited the Respondent on 10 August as
well as on 30 August and 8 September 2005 to provide a copy of the relevant
transfer agreement in order to consider the present matter.
5.
On 27 September 2005, the Respondent informed FIFA that the player was
transferred to them from xxxx free of costs, i.e. the Respondent affirmed that it
paid no transfer compensation for the player. As a result, the Respondent deemed
that no solidarity contribution is due.
6.
On 20 October 2005, the Football Association of XXXX informed FIFA that xxxxx
had received the amount of USD 350,000 from the Respondent for the transfer of
the player A.
7.
On 18 November 2005, FIFA received a copy of the relevant transfer agreement,
which stipulates that the player was transferred for the amount of USD 350,000.
8.
On 11 January 2006, the Respondent argued that the relevant transfer agreement
regarding the player A is not signed and sealed by it and has therefore, in
accordance with the Civil Code of xxxxx, no legal effects and does not cause civil
rights and responsibilities. Moreover, the Respondent stated that the signature of
the player seems to be falsified, since the club has original samples of the player’s
signature which differ from the signature on the alleged transfer agreement.
9.
On 12 February 2006, the Claimant contested the position of the Respondent and
pointed out that the latter did not provide any evidence. Moreover, the Claimant
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firmly believes that xxxx would not have released and transferred a player of the
XXXX national team for free.
10.
The Respondent referred to its previous statements and enclosed a letter written
by the player, by means of which he affirmed that the relevant transfer agreement
is falsified.
11.
The Dispute Resolution Chamber is asked to decide the amount due as solidarity
contribution to the Claimant, if any.
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 11 May 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
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 the Claimant in connection with the transfer of the
professional A 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 March 2004. Equally the Chamber took note that the claim was
lodged at FIFA on 11 May 2005. In view of the aforementioned, the Chamber
concluded that the former FIFA Regulations for the Status and Transfer of Players
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(edition 2001, hereafter: the Regulations) are applicable to the case 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 as further established in the article 25
of the Regulations, the new club concerned is to distribute 5% of any
compensation paid to the previous club to the club(s) where the player has played
between the age of 12 and 23.
6.
In the present case, the Chamber outlined that according to the confirmation of
the Football Association of XXXX the player A, born on 9 November 1978, was
registered with the Claimant as from 7 December 1998 until 30 December 2001
that is, for 3 years between the ages of 20 and 23.
7.
The Chamber duly noted that the Claimant is requesting 30% of 5% of the
transfer compensation paid by the Respondent to xxxxxx, plus 5% interest for late
payment and the reimbursement of the legal expenses. Moreover, the Chamber
acknowledged that the Respondent is not contesting the Claimant’s entitlement
to receive its proportion of the solidarity contribution, however, the parties have
contradictory opinions with regard to whether an amount of transfer
compensation has been paid for the transfer of the player A.
8.
In this respect, the Chamber took into account that, on the one hand, the
Respondent argued that it paid no transfer compensation to the player’s former
club xxxx since the player was transferred free of costs. However, the Chamber
took due note that the Respondent did not provide any evidence in order to
sustain its allegations.
9.
Moreover, the Chamber noted that, on the other hand, the Football Association
of XXXX confirmed that xxxx, the player’s former club, received the amount of
USD 350,000 from the Respondent for the transfer of the player A. Furthermore,
the Chamber took into account that FIFA received a copy of the relevant transfer
agreement, which stipulates that the player was transferred for the amount of
USD 350,000. Furthermore, the Chamber noted that in accordance with this
agreement, which also bears the player’s signature, the player agreed to sign an
employment contract with the Respondent, some terms of which are specified in
the transfer agreement.
10.
In addition, the Chamber acknowledged that the Respondent argued that the
relevant transfer agreement regarding the player A is not signed and sealed by
the Respondent has therefore, in accordance with the Civil Code of XXX, no legal
effects and does not cause civil rights and responsibilities. Moreover, the
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Respondent stated that the signature of the player seems to be falsified, since the
club has original samples of the player’s signature which differ from the signature
on the relevant agreement.
11.
In this regard, the Chamber stated that in accordance with the legal principle of
the burden of proof, which is a basic principle in every legal system, a party
asserting a fact has the obligation to prove the same. Moreover, the Chamber
pointed out that it does not fall under its competence to decide whether a
signature is forged or genuine.
12.
In this sense, the Chamber underlined that the Respondent neither provided any
written evidence in order to sustain that the player was transferred to them free
of costs nor provided any pertinent evidence to corroborate its allegations with
respect to the alleged falsification of the player’s signature.
13.
Moreover, the Chamber emphasized that even in absence of the Respondent’s
signature on the transfer agreement, the player having co-signed this agreement,
apparently in the context of the player signing an employment contract,
demonstrates that the parties at least had the intention to transfer the player
against the terms set out in the transfer agreement.
14.
For the sake of good order, the Chamber emphasized that the player’s statement
provided by the Respondent cannot be taken into account due to its lack of
objectiveness.
15.
In view of all of the above, the Chamber emphasized that based on the fact that
the Football Association of XXX confirmed that the players’ former club received
the amount of USD 350,000 from the Respondent for the transfer of the player A
and for lack of evidence of the contrary it has to be concluded that the said player
was transferred for the amount of USD 350,000.
16.
Having thus been established that the transfer compensation based on which the
solidarity contribution should be calculated amounts to USD 350,000, the Chamber
turned its attention to the calculation of the relevant amount.
17.
The Chamber made further reference to Art. 10 of the Regulations governing the
Application of the Regulations for the Status and Transfer of Players, which
provides the figures for the distribution of the solidarity contribution, according to
the time the player was effectively trained by the clubs involved.
18.
In this respect, the Chamber took into account that, on the one hand, the Football
Association of XXXX confirmed that the player A, born on 9 November 1978, was
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registered with the Claimant as from 7 December 1998 until 30 December 2001
between the ages of 20 and 23. On the other hand, the Chamber considered that
the Claimant is requesting 30% of 5% of the transfer compensation paid by the
Respondent to xxxxx, plus 5% interest for late payment and the reimbursement of
the legal expenses.
19.
As a result, the Chamber upheld the claim of the Claimant and concluded that
that the Claimant is entitled to receive the amount of USD 5,250 corresponding to
30% of 5% of USD 350,000.
20.
Finally, and with regard to the reimbursement of the legal expenses the Chamber
referred to its well-established jurisprudence and rejected the Claimant’s claim in
this respect.
21.
Taking into account all of the above the Dispute Resolution Chamber decided that
the Respondent must pay to the Claimant 30% of the 5% of the transfer
compensation paid in relation to the transfer of the player A from xxxxx to the
Respondent, i.e., USD 5,250 to the Claimant.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, X, is partially accepted.
2.
The Respondent, Y, has to pay the amount of USD 5,250 within 30 days as from
the date of notification of this decision.
3.
Any further claims lodged by the Claimant are rejected.
4.
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 to FIFA’s Disciplinary Committee so that the
necessary disciplinary sanctions may be imposed.
5.
The Claimant is directed to inform the Respondent 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.
6.
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
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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
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:
Urs Linsi
General Secretary
Encl.
CAS directives
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