Solidarity Contribution
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 21 November 2006,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Paulo Rogerio Amoretty Souza (Brazil), member
Ivan Gazidis (USA), member
Carlos Soto (Chile), member
John Didulica (Australia), member
on a matter between
the club, X
represented by Mr., attorney-at-law
and
the club, Y
and
the club, Z,
as Intervening party
regarding the distribution of solidarity contribution in connection with the player, V
./…
I.
Facts of the case
1.
The player, V, was born on 15 April 1983.
2.
On 3 March 2005, Y and Z signed an agreement in accordance with which the
player, V, was transferred to X involving the payment of a transfer compensation
of USD 4,500,000.
3.
According to an additional agreement signed by and between the same parties
on the same day, which agreement is an integral part of the transfer agreement,
Y and Z agreed that Z would be responsible for solidarity contribution payments
to the maximum amount of USD 50,000. Furthermore, Y would be responsible for
any solidarity contribution payments exceeding the said amount of USD 50,000.
4.
According to Y, the player in question was registered with Y on 10 March 2005.
5.
On 25 November 2005, X lodged a claim in front of the DRC against Y for
payment of its proportion of the solidarity contribution relating to the abovementioned transfer.
6.
According to the player’s playing passport issued by the Football Federation of X,
the player was formerly registered with X from 8 September 1998 until 6 April 1999.
7.
X has presented the following calculation of its alleged part of the solidarity
contribution on the basis of article 1 of Annex 5 of the current Regulations for the
Status and Transfer of Players:
a. the player was allegedly registered with X from 8 September 1998 until 6 April
1999, i.e. during the season of the player’s 15th birthday (until 31 December
1998) and 16th birthday (from 1 January 1999 until 6 April 1999).
b. therefore, X claims being entitled to 4.17% of the 5% solidarity contribution.
8.
In reply to the claim, Y refers to the transfer agreement that it signed with Z, in
accordance with which Z would be responsible for solidarity contribution
payments to an amount not exceeding USD 50,000. In addition, Y refers to the
obligation allegedly undertaken by “… Agency” in … to pay part of the amount
of solidarity contribution according to the agency’s letter of guarantee of 28
February 2005.
9.
In addition, Y points out that there is a contradiction in the period of registration
of the player with X and that the calculation put forward by X is thus wrong. Y
accepts the period of registration as confirmed by the Football Federation of X.
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10. On 13 January 2006, FIFA suggested to the parties that Y distributes the relevant
proportion relating to the 5% solidarity contribution of the transfer compensation
to X and that Z reimburses to Y the relevant proportion in line with the
jurisprudence of the DRC.
11. The parties have not been able to settle the matter in this way.
12. On 18 January 2006, Y lodged a claim in front of the Players’ Status Committee
against Z maintaining that Z has not proceeded with the payment of the relevant
solidarity contribution in spite of having been asked by Y to do so in view of the
claims presented by X and another club from the country of X with which the
player was previously registered.
13. Z has intervened in this matter explaining that it would proceed with a payment
of up to USD 50,000 to another club from the country of X that lodged a claim
against Y for payment of solidarity contribution in connection with the
aforementioned transfer agreement.
14. During the proceedings in the present matter, Z paid the amount of USD 50,000 to
this other club from the country of X, receipt of which was confirmed by the
latter.
15. Y thereafter informed FIFA that “the parties involved in this situation” are carrying
on negotiations with each other.
16. X, for its part, has confirmed that it has received no payment from Y.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution 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 25
November 2005, as a consequence the Chamber concluded that the revised
Rules Governing Procedures (edition 2005) on matters pending before the
decision making bodies of FIFA are applicable to the matter at hand.
2.
With regard to the competence of the Chamber, art. 3 par. 1 of the abovementioned Rules states that the Dispute Resolution Chamber shall examine its
jurisdiction in the light of articles 22 to 24 of the current version of the Regulations
for the Status and Transfer of Players (edition 2005). In accordance with art. 24
par. 1 in combination with art. 22 (d) of the aforementioned Regulations, the
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Dispute Resolution Chamber shall adjudicate on disputes between two clubs
belonging to different Associations related to solidarity mechanism.
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 V
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 on 10 March 2005. Equally, the Chamber took note
that the claim was lodged at FIFA on 25 November 2005. In view of the
aforementioned, the Chamber concluded that the former FIFA Regulations for
the Status and Transfer of Players (edition 2001, hereinafter: the Regulations) are
applicable to the case at hand as to the substance.
5.
Once its competence and the applicable Regulations were thus established,
the DRC went on to deal with the substance of the case. The members of the
Chamber carefully studied the facts outlined above, which show that the
player, V, was transferred from Z (hereinafter also referred to as: Intervening
party) to Y on a definitive basis in March 2005.
6.
To this end, Z and Y signed a transfer agreement in accordance with which Y
was obliged to pay to the Intervening party a transfer compensation to the
amount of USD 4,500,000.
7.
At this point, the Chamber recalled that, as established in article 10 in
conjunction with article 11 of the Regulations governing the Application of the
Regulations (edition September 2001), the new club to which a player is
transferred during the course of an employment contract with his previous club
is responsible for the distribution of 5% of the compensation payable to the
player’s former club to the club(s) involved in the training and education of the
player between the ages of 12 and 23.
8.
The Chamber took into account that Y, i.e. the player’s new club, rejects the
claim put forward by X maintaining that X should turn to the Intervening party,
i.e. the player’s former club, in order to obtain its proportion of the 5% solidarity
contribution payment, given that Z committed itself to paying solidarity
contribution up to the maximum amount of USD 50,000.
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9.
In this respect, the Chamber once more referred to paragraph 1 of the abovementioned article 11 of the Regulations governing the Application of the
Regulations (edition September 2001) which clearly states that the new club
shall pay the amount due as a solidarity contribution to the training clubs.
10.
However, the Chamber noted that, during the proceedings in the case at stake
and in accordance with the relevant transfer agreement (cf. point I.3 above),
the Intervening party remitted USD 50,000 in full to one other club from the
country of X that equally claimed solidarity contribution from Y.
11.
The Chamber took into account that X has received no payment from the
Intervening party in this connection.
12.
In its defence, Y equally refers to the obligation allegedly undertaken by “…
Agency” in … to pay part of the amount of solidarity contribution according to
the alleged agency’s letter of guarantee of 28 February 2005.
13.
The Chamber noticed that Y failed to submit documentary evidence in this
regard. However, irrespective of such fact, the Chamber pointed out that any
such “guarantee” issued by an agency or private company could not be taken
into consideration and that should it have been possible to take such document
into account it would not preclude Y’s obligation to pay solidarity contribution in
the light of points II.7 and II.9 above.
14.
In light of all the above, the Chamber concluded that in application of article 11
of the Regulations Governing the Application of the Regulations (edition
September 2001) it is the responsibility of Y, i.e. the new club, to pay the relevant
proportion of the solidarity contribution to the club(s) involved in the player’s
training.
15.
Having established that the transfer of the player in question was on a definitive
basis and that a transfer compensation was agreed upon between the player’s
former club and new club, the Chamber then turned to the calculation of the
relevant proportion due to X on the basis of the period of time that the player
was trained and educated by X.
16.
The Chamber subsequently referred to art. 10 of the Regulations governing the
Application of the Regulations, which provides the figures for the distribution of
the solidarity contribution.
17.
The members of the Chamber underlined that the player passport issued by the
Football Federation of X is to be the basis on which the amount of solidarity
contribution must be calculated.
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18.
Considering that the player, V, born on 15 April 1983, was registered with X as
from 8 September 1998 until 6 April 1999, i.e. from the age of 15 until the age of
almost 16, 5.8% of the 5% solidarity contribution shall be apportioned to this club.
19.
The members of the Chamber, however, recalled that X demands payment of
4.17% of the 5% solidarity contribution, which represents the total amount of USD
9,382.50. Departing from the principle that the amount awarded shall not
exceed the claimed amount, the Chamber concluded that X shall be entitled
to receive from Y the total amount of solidarity contribution of USD 9,382.50.
20.
Therefore, the Chamber decided that Y is liable to pay the amount of USD
9,382.50 as solidarity contribution to X.
*****
III.
Decision of the Dispute Resolution Chamber
1.
The claim lodged by the X is accepted.
2.
Y has to pay the amount of USD 9,382.50 to X within 30 days as from the date of
notification of this decision.
4.
If the sum of USD 9,382.50 is not paid within the aforementioned deadline by Y,
an interest rate of 5% per year will apply and the matter shall be submitted to
the FIFA Disciplinary Committee for its consideration and decision.
5.
X is directed to inform Y 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.
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:
6
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
Enclosed: CAS directives
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