Solidarity Contribution
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 7 May 2008,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Gerardo Movilla (Spain), member
Philippe Piat (France), member
Philippe Diallo (France), member
Ivan Gazidis (USA), member
on a matter between the
Football Federation A
represented by XXX
and
Club B
and
Club C
as intervening party
regarding the solidarity contribution related to the
transfer of the player D
I.
Facts of the case
1.
According to the player passport of Player D (hereinafter: the player), issued by the
Football Federation of A in February 2007, no record was found for the player, born
on 13 February 1981, for the period from 1 January 1993 until 14 August 1997, i.e.
between the player’s ages of 12 and 16.
2.
In August 2005, an agreement regarding the free loan of the player from Club C
(hereinafter: Club C ) to Club B (hereinafter: Club B) was signed, with the option of
a definite transfer of the player.
3.
In September 2005, an agreement regarding the definite transfer of the player from
Club C to Club D was concluded for a compensation in the amount of EUR
5,250,000, payable as follows:
o EUR 250,000 before signing the agreement and
o EUR 5,000,000 by 1 August 2007.
4.
On 14 June 2007, the Football Federation A lodged a formal complaint at FIFA,
requesting payment of the solidarity contribution for the period from 1 January
1993 until 14 August 1997, i.e. the player’s ages of 12 to 16, as apparently no link
between the player and any club could be made. The Football Federation A claims
26,19% of the proportion of 5% of the solidarity contribution in the total amount
of EUR 68,748.75.
5.
In its response to the claim, Club B confirmed to have exercised the option of the
definite transfer of the player but puts forward that Club C should honor its
obligations as set out in the transfer agreement and pay the relevant amounts of
solidarity contribution. Furthermore, Club B affirms to have paid EUR 250,000 to
Club C which corresponds to 5% of the transfer compensation of EUR 5,000,000.
Therefore, only the amount of EUR 5,000,000, due by August 2007, should be taken
into consideration for the solidarity contribution.
6.
On 30 January 2008 and on 31 March 2008, respectively, FIFA informed all the
parties about the jurisprudence of the Dispute Resolution Chamber in similar cases
in accordance with which the player’s new club, in casu Club B, 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 the relevant provisions of the
Regulations for the Status and Transfer of Players. At the same time, the player’s
former club, in casu Club C, is ordered to reimburse the same proportion(s) of the
5% of the compensation that it received from the player’s new club. FIFA informed
the parties that the said jurisprudence is based on the 2001 edition of the said
Regulations but that the 2005 edition of the Regulations did not change as to the
substance of the relevant aspect.
Distribution of the solidarity contribution for the Player D
(Football Federation A / Club B / Club C)
2
7.
Although having been invited to produce its comments on the aforementioned
letter, FIFA did not receive any response from Club B nor from Club C.
8.
Having been asked to elaborate on why no link could be made between the player
and any club during the indicated period, i.e. to inform about the player’s activities
and whereabouts in the claimed period, the Football Federation A informed FIFA
that it was not possible to determine where the player was trained in the relevant
period. It stated that in XYZ, most players start their careers in clubs of their
neighborhood, schools or even the favelas; i.e. clubs which are not affiliated to the
Football Federation A. The Football Federation A asserted that the subject player
had for sure been trained and educated by a club, however, by a club or a kind of
“football school” which is not affiliated to the Federation and which is therefore
not entitled to claim solidarity contribution. Furthermore, the Football Federation A
put forward that it only needed to demonstrate that no link could be established
between the player and any club and not had to proof that the player had actually
been trained by a club.
9.
The Football Federation A informed FIFA that the seasons in XYZ run from January
to December.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber analysed whether it was competent to
deal with the case at hand. In this respect, it took note that the present matter was
submitted to FIFA on 14 June 2007. Consequently, the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(hereinafter: the Procedural Rules) are applicable to the matter at hand (cf. art. 18
par. 2 and 3 of the Procedural Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the
Procedural Rules and confirmed that in accordance with art. 24 par. 1 in
combination with art. 22 lit. (d) of the Regulations on the Status and Transfer of
Players (edition 2008), the Dispute Resolution Chamber is competent to decide on
the present litigation with an international dimension concerning the distribution
of the solidarity contribution claimed by the Football Federation A in connection
with the transfer of the professional player D during the course of a contract.
Distribution of the solidarity contribution for the Player D
(Football Federation A / Club B / Club C)
3
3.
Furthermore, and taking into consideration that the player was registered with his
new club in autumn 2005, 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 (edition 2008), and considering that the present matter was submitted to
FIFA on 14 June 2007, the previous edition of the regulations (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. The members of
the Chamber started by acknowledging that as established in art. 21 of the
Regulations in connection with Annex 5 of the Regulations, the new club of the
player has 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.
5.
The Chamber underlined that in the present case, it was an Association and not a
club which claimed payment of solidarity contribution. Therefore, it first had to
analyse whether the conditions set fort in art. 2 par. 3 of Annex 5 of the
Regulations were fulfilled.
6.
The Chamber recapitulated that the aforementioned article stipulated that if a link
between a professional and any of the clubs that trained him could not be
established within 18 months of his transfer, the solidarity contribution shall be
paid to the Association(s) of the country where professional was trained.
7.
In this respect, the Chamber took note of the fact that in support of its claim, the
Football Federation A had submitted a copy of the player passport of the player
according to which in the period from 1 January 1993 when the player was 12 until
14 August 1997 when the player was 16, no record could be found for the player.
8.
In view of the aforementioned, the members acknowledged that as asserted by the
Football Federation A, no link could be established between the player and any of
the clubs affiliated to the Football Federation A that trained him during the
aforementioned period.
9.
In continuation, the Chamber stated that it further had to analyse whether the time
frame of 18 months for the possible establishment of a link had already elapsed
after the transfer of the player which was a prerequisite contained in art. 2 par. 3 of
Annex 5 of the Regulations.
Distribution of the solidarity contribution for the Player D
(Football Federation A / Club B / Club C)
4
10.
In this respect, the members stated that the transfer of the player from Club C to
Club B had taken place in September 2005. However, the members emphasized that
the parties had agreed upon contingent payments in the amount of EUR 250,000
due before signing the agreement and the amount of EUR 5,000,000 due by 1
August 2007.
11.
In this respect, the members referred to art. 2 par. 1 of Annex 5 of the Regulations
which stipulates that the solidarity contribution to the training club(s) should be
paid no later than 30 days after the player’s registration, or, in case of contingent
payments, 30 days after the date of such payments.
12.
Therefore, the Chamber took note that with respect to the first contingent payment
of EUR 250,000, due before the signing of the agreement, the required time frame
of 18 months for the possible establishment of a link had elapsed, however, with
respect of the second contingent payment of EUR 5,000,000, due by 1 August 2007,
the time frame of 18 months had not yet elapsed.
13.
In view of the aforementioned, the Chamber stated that the Football Federation A
was only entitled to claim the proportion of 5% of the solidarity contribution with
respect to the first contingent payment of the transfer compensation in the amount
of EUR 250,000. Therefore, the Chamber decided that the claim for the proportion
of 5% of the solidarity contribution with respect to the second contingent payment
of EUR 5,000,000 is not admissible.
14.
Having established the aforementioned, the Chamber took note that Club B (the
player’s new club) asserted to have paid the entire amount of EUR 5,250,000 agreed
upon as transfer compensation, to Club C (the player’s previous club) and that
therefore, the latter would be responsible to pay the relevant solidarity
contribution to Club E. In other words, Club B suggested to have omitted to deduct
5% of the relevant transfer compensation related to the solidarity mechanism. The
Chamber furthermore took note that this statement had not been contested by
Club C.
15.
Furthermore, the Chamber observed that in view of the aforementioned, Club B
maintained that Club C should pay the relevant proportion of solidarity
contribution to Club E.
16.
After examining clause 3 of the transfer agreement concluded between Club B and
Club E, the Chamber considered that the relevant clause stipulated, in contradiction
to art. 21 and Annex 5 of the Regulations, that it was Club C’s obligation to pay the
relevant amounts to the club(s) which trained the player, in accordance with the
player passport of the player.
Distribution of the solidarity contribution for the Player D
(Football Federation A / Club B / Club C)
5
17.
On account 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. 21 and Annex 5 of the
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.
18.
As a result, and in application of the said jurisprudence, the DRC decided that the
argument of Club B could not be taken into consideration and thus has to be
rejected.
19.
Turning its attention to Club C, the Chamber reproached the behavior of Club C
which never took position in the dispute despite having been asked to do so by the
FIFA administration. In this way, Club C renounced its right to defense and accepted
the allegations of the Football Federation A.
20.
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, the relevant claim does not find a 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.
21.
The Chamber then referred to art. 1 of Annex 5 of the Regulations which provides
the percentages of the share for the distribution of the solidarity contribution,
according to the period in which the player was effectively trained by the club(s)
involved.
22.
In the present case, the Chamber outlined that according to the confirmation of the
Football Federation A, the period to be taken into consideration (period in which
no link could be established between the player and any of the clubs that trained
him) is the following: from 1 January 1993 until 14 August 1997, at the player’s age
of 12 to 16. In this respect, the Chamber concluded that the relevant period to be
taken into account corresponds to 4 sporting seasons and 7 months.
23.
Therefore, the Chamber established that, in accordance with the breakdown
provided for in art. 1 of Annex 5 of the Regulations, Football Federation A is
entitled to receive 25.8 3 % of the 5% of the compensation paid in relation to the
transfer of the player D from Club C to Club B. Therefore, the Chamber decided that
Distribution of the solidarity contribution for the Player D
(Football Federation A / Club B / Club C)
6
any amount above the established percentage of 25.8 3 % claimed by the Football
Federation A has to be rejected.
24.
Finally, the Chamber noted that according to the transfer agreement remitted to
the file, the relevant first contingent payment of the transfer compensation
amounts to EUR 250,000 (cf. also point II.13 of the above considerations).
25.
Based on all of the above, the Dispute Resolution Chamber decided that Club B has
to pay to the Football Federation A 25.8 3 % of the 5% of the first contingent of the
transfer compensation paid in relation to the transfer of the player E in the amount
of EUR 250,000, i.e. EUR 3,229 and that Club C has to reimburse the amount of EUR
3,229 to Club B.
III.
Decision of the Dispute Resolution Chamber
1.
A part of the claim of the Football Federation A is not admissible.
2.
The remaining claim of the Football Federation A is partially accepted.
3.
The Club B, has to pay the amount of EUR 3,229 to the Football Federation A
within 30 days as from the date of notification of this decision.
4.
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.
5.
The Football Federation A is directed to inform the Club B 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.
6.
Any further request of the remaining claim of the Football Federation A is rejected.
7.
The Club C has to reimburse the amount of EUR 3,229 to the Club B within 30 days
of notification of the present decision.
8.
If the aforementioned sum is not paid within the aforementioned deadline an
interest rate of 5% per year will apply as of the 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.
Distribution of the solidarity contribution for the Player D
(Football Federation A / Club B / Club C)
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9.
The Club B is directed to inform the Club C 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.
10.
According to art. 61 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
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
Encl.
CAS directives
Distribution of the solidarity contribution for the Player D
(Football Federation A / Club B / Club C)
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