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
Club E
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 A in February 2007, the player, born on 13 February 1981,
was registered with Club E (hereinafter: Club E) from 15 August 1997 until 28
January 2000, between the ages of 16 and 19.
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 B was concluded for a compensation in the amount of EUR
5,250,000, payable as follows:
- EUR 250,000 before signing the agreement and
- EUR 5,000,000 by 1 August 2007
4.
On 15 January 2007, Club E lodged a formal complaint at FIFA, requesting
payment of the solidarity contribution for the period from 15 August 1997 until 11
February 2000 of 24,9% of the proportion of 5% of the solidarity contribution in
the total amount of EUR 65,362.50.
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 should pay the relevant
amount of solidarity contribution. Club B informs to have paid EUR 250,000 to
Club C corresponding to 5% of the transfer compensation of EUR 5,000,000.
Therefore, according to Club B, only the amount of EUR 5,000,000 needed to be
taken into consideration for the payment of solidarity contribution.
6.
On 30 January 2008 respectively on 31 March 2008, 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 casu Club E, 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
(Club E / Club B / Club C)
2
7.
Although having being invited by FIFA to produce its comments on the
aforementioned letter, neither Club B nor Club C submitted its comments.
8.
The Football Federation A informed FIFA that in XYZ, the seasons run from
January to December in the relevant years.
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 15 January 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 Club E in connection with the transfer of
the professional Player D during the course of a contract.
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 15 January 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.
Distribution of the solidarity contribution for the Player D
(Club E / Club B / Club C)
3
5.
In the present case, the Chamber outlined that according to the player passport
issued by the Football Federation A in February 2007, the period to be taken into
account with regard to the solidarity contribution runs from 15 August 1997 when
the player was 16 until 28 January 2000 when the player was 19.
6.
In this respect, the Chamber duly noted that Club B (the player’s new club) asserts
having 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 omitted to deduct 5% of the relevant transfer compensation related
to the solidarity mechanism. This fact is not contested by Club C.
7.
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.
8.
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 is Club C’s
obligation to pay the relevant amounts to the clubs which trained the player, in
accordance with the player passport of the player concerned.
9.
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.
10.
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.
11.
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 Club E.
12.
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.
Distribution of the solidarity contribution for the Player D
(Club E / Club B / Club C)
4
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.
13.
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.
14.
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 of
registration of the player with Club E) is the following: from 15 August 1997 until
28 January 2000, at the player’s age of 16 to 19. In this respect, the Chamber
concluded that the period of effective training to be taken into account
corresponds to two sporting seasons and 6 months.
15.
Therefore, the Chamber established that, in accordance with the breakdown
provided for in art. 1 of Annex 5 of the Regulations, Club E is entitled to receive
24. 9 % of the 5% of the compensation paid in relation to the transfer of the
Player D from Club C to Club B.
16.
Finally, the Chamber noted that according to the transfer agreement remitted to
the file, the player Player D was transferred for the amount of EUR 5,250,000.
17.
Based on all of the above, the Dispute Resolution Chamber decided that Club B
has to pay to Club E 24. 9 % of the 5% of the transfer compensation paid in
relation to the transfer of the Player D, i.e. EUR 65,362.50 and that Club C has to
reimburse the amount of EUR 65,362.50 to Club B.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Club E is accepted.
2.
The Club B, has to pay the amount of EUR 65,362.50 to the Club E FC 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.
Distribution of the solidarity contribution for the Player D
(Club E / Club B / Club C)
5
4.
The Club E 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.
5.
The Club C has to reimburse the amount of EUR 65,362.50 to the Club B 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 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.
7.
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.
8.
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:
Distribution of the solidarity contribution for the Player D
(Club E / Club B / Club C)
6
Markus Kattner
Deputy Secretary General
Encl.
CAS directives
Distribution of the solidarity contribution for the Player D
(Club E / Club B / Club C)
7