Solidarity Contribution
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 15 June 2011,
in the following composition:
Geoff Thompson (England), Chairman
Carlos Soto (Chile), member
Mario Gallavotti (Italy), member
on the claim presented by the club
N1,
as Claimant
against the club
V,
as Respondent
regarding a solidarity contribution dispute
related to the transfer of the player M,
I.
Facts of the case
1.
According to the player passport issued by the Football Federation C (FFC) (hereinafter:
the player passport of the FFC), the player M (hereinafter: the player), born on 21 May
1986, was registered as follows:
- Club N1 hereinafter: the Claimant):
from 14 August 1996 until 16 June 2005 as a professional
- Club A1 (hereinafter: A1 ):
from 27 August 2003 until 9 September 2005 as an amateur
- Club L1 (hereinafter: L1 ):
from 4 February 2004 until 15 June 2004 as an amateur
- Club Z1 (hereinafter: Z1 ):
from 29 June 2005 until 9 July 2007 as a professional
- Club D1 (hereinafter: D1):
from 9 July 2007 until 15 July 2010 as a professional
2.
According to the Football Federation C, the football season in country C ran from 1 July
until 30 June of the following year during the period of registration of the player with
the Claimant.
3.
According to the information contained in the Transfer Matching System (TMS), the
player was transferred from D2 club of the country C (hereinafter: D1) to the club V of
country G (hereinafter: the Respondent) on 3 August 2010.
4.
According to the Football Federation G (FFG), the player was registered with the
Respondent on 8 August 2010.
5.
The transfer agreement concluded between the Respondent and club D1 provided for a
transfer compensation in the amount of EUR 7,500,000 as well as for several conditional
payments as follows: “If during the term of the employment contract (until 30th June
2014) between the club V and the player, the player participates in at least 17 official
matches in one sportive season for a minimum of 45 minutes a match and the club V
qualifies for the group stage of the UEFA Champions League for the upcoming season,
club V shall be obliged to pay a further compensation fee of Euro 500.000,-- (excluding
VAT) (…) to the club D1 to be paid within 30 days after the qualification for the group
stage.”
6.
On 28 October 2010, the Claimant lodged a claim with FIFA against the Respondent,
requesting its relevant share of solidarity contribution in connection with the player’s
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transfer from the club D1 to the Respondent for the alleged amount of 2.92% of the
total transfer compensation. In particular, the Claimant requested the amount of EUR
219,000, plus 5% interest per annum.
7.
Subsequently, the Claimant explained that it had received EUR 155,856 from the
Respondent. Therefore, the Claimant reduced its claim to an amount of EUR 55,222,
plus reimbursement of the advance of costs. The Claimant also explained that “Since
the respondent was interested in peaceful settlement of the dispute, we will not
request application of penalty sanctions from the club V”.
8.
In its response, the Respondent rejected the Claimant’s claim and confirmed that it paid
EUR 155,856 to the Claimant, and it therefore held that all claims of the Claimant, as far
as they were justified, had been fulfilled.
9.
In its reply, the Respondent provided FIFA with another player passport, apparently also
issued by the Football Federation C, and uploaded on TMS (hereinafter: “the player
passport on TMS”), which displayed the following registration details:
-
10.
Club N2:
Club A2:
Club L2:
Club Z2:
Club D2:
from 14 August 1996
from 27 August 2003
from 4 February 2004
from 29 June 2005
from 9 July 2007
non-amateur;
amateur;
amateur;
non-amateur;
non-amateur.
Upon request, the Football Federation C explained, as regards the two versions of the
player passport, that they were “completely identical” and different only in respect to
their form. The Football Federation C explained that the player passport of the Football
Federation C was “more detailed than the printed version [i.e. than the player passport
on TMS] which we normally enclose to ITCs.” Football Federation reiterated the
following registration details “in order to clarify the playing history of the player”:
- from 14 August 1996 until 16 June 2005, the player was registered with [the
Claimant];
- from 4 February 2004 until 15 June 2004, the player was loaned from [the Claimant]
to L1;
- from 27 August 2003 until 9 September 2005, the player was simultaneously
registered with [the Claimant] and the Club A2 (the Football Federation C
emphasized that such registration was “valid in accordance to the FIFA and our
internal regulations”);
- from 29 June 2005 until 9 July 2007, the player was registered with Z1;
- from 9 July 2007 until 15 July 2010, the player was registered with D1.
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11.
The Claimant, by means of subsequent correspondence, also stated that the player was
loaned to L1 as from 30 January 2004 until 15 June 2004 and that, therefore, this period
should be excluded from the total period of registration with the Claimant.
12.
Additionally, the Claimant held that the information contained in the player passport
on TMS was not correct. It explained that A1 was a Futsal club and that the player,
while being registered with A1, also remained registered with the Claimant, and that
such simultaneous registration was not prohibited by the FIFA regulation. The Claimant
held that, as from 27 August 2003 (i.e. as from the registration date with A1), “the
compensation should be received by the football club in which M was registered as an
eleven-a-side football player” (i.e. by the Claimant).
13.
In support of this, the Claimant submitted match protocols from the time period when
the player was registered with A1 (as well as, allegedly, with the Claimant), which
displayed that the player still took part in games of the Claimant.
14.
The Respondent, on the contrary, held that the two player passports were identical only
insofar as they both confirmed the registration of the player with L1 at least from 4
February 2004 until 15 June 2004 and that therefore, no payment of solidarity
contribution could be due to the Claimant for such time period.
15.
The Respondent added that, according to the player passport on TMS, the player was in
fact not only registered with L1 for the above-mentioned period, but from 4 February
2004 until 29 June 2005. Based on this time-period and based on the player passport on
TMS, the Respondent explained that it made the payment of the relevant solidarity
contribution to L1 in the amount of EUR 52,500.
16.
Additionally, the Respondent referred to the FIFA commentary on the Regulations on
the Status and Transfer of Players, according to which the player passport was explicitly
mentioned as the crucial element to establish which clubs are entitled to solidarity
contribution.
17.
In addition, the Respondent argued that the Claimant disregarded, in its calculation,
that the player was registered with A1 at least “from 28 March 2003 until 4 February
2004”.
18.
Overall, the Respondent concluded that the time period for which the Claimant could
claim solidarity contribution ended on 26 August 2003, which was, according to the
Respondent, exactly the time period on which it based its calculation and payment.
19.
Subsidiary to its rejection of the claim, the Respondent requested that L1 be condemned
to reimburse the respective amounts which the Respondent had allegedly paid to L1 for
the time period from 4 February 2004 until 28 June 2005, in case the Respondent had to
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pay solidarity contribution for this period to the Claimant. The Respondent argued that,
in that case, such payments to L1 would have been groundless.
20.
In addition, the Respondent stressed that the two player passports were not only
different as to their form, but that they displayed different registration periods. The
Respondent held that it had based its payments on the official FIFA player passport.
Equally, the Respondent argued that it was not clear whether A1 was a Futsal club. It
emphasized again that ambiguity in documents, such as in the two player passports in
question, could not be held against the Respondent. Once more, the Respondent
argued that it had acted according to the FIFA player passport which it deemed to be
the only reliable document.
21.
Additionally, the Respondent disputed that the denominations “FC N2 ” and “Club N1
referred to the same club, and that the respective statement of the Football Federation
C could not provide the necessary proof.
22.
In its comments thereto, the Claimant reiterated its previous position. In addition, the
Claimant held that it was the Respondent’s fault that the latter made incomplete
payments. The Claimant held that the player passport submitted by the Respondent
only indicated the starting date of each registration. The Claimant stated that the
respective end dates on which the Respondent based its calculation “are considered to
be invented” and that the Respondent “didn’t realize any actions in order to confirm
these dates”.
23.
In addition, the Claimant agreed to the Respondent’s appreciation as regards the
possible reimbursement of the amounts paid to L1.
24.
In its final comments, the Respondent rejected any payment obligation. In particular, it
held that the Claimant carried the burden of proof as regards any additional payments
due by the Respondent to the Claimant. Again, the Respondent held that it could, and
had to, rely on the “official version” of the player passport and that it could not be up
to the Respondent to establish which of several passport versions was the pertinent one.
In addition, the Respondent referred to its previous statements and reiterated its
positions expressed therein.
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II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter: the Chamber or the DRC)
analysed which procedural rules are applicable to the case at hand. In this respect, it
took note that the present matter was submitted to FIFA on 28 October 2010, i.e. after
1 July 2008. Consequently, the 2008 edition of the Rules Governing the Procedures of
the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the
Procedural Rules), is applicable to the matter at hand (cf. article 21 par. 2 and 3 of the
Procedural Rules).
2.
In continuation, the Chamber referred to art. 3 par. 1 of the Procedural Rules and
confirmed that, in accordance with art. 24 par. 1 and 2 in combination with art. 22 lit. d)
of the Regulations (edition 2009), the Dispute Resolution Chamber was competent to
adjudicate on a dispute relating to the payment of solidarity contribution between a
club and a club.
3.
In this respect, the Chamber was eager to emphasise that, contrary to the information
contained in FIFA’s letter dated 9 June 2011, by means of which the parties were
informed about the composition of the Chamber, the member Mr. Y refrained from
participating in the deliberations, due to the fact that the member Mr. Y has the
same nationality as the Claimant. Equally, and in order to comply with the
prerequisite of equal representation of club and player representatives, also the
member Mr. T refrained from participating in the deliberations. Thus, the Dispute
Resolution Chamber adjudicated the case in presence of three members in
accordance with art. 24 par. 2 of the Regulations.
4.
Furthermore, the Chamber analysed which regulations were applicable as to the
substance of the matter. In this respect, it confirmed that, in accordance with art. 26
par. 1 and 2 and art. 29 of the 2009 and 2010 edition of the Regulations on the Status
and Transfer of Players, and considering that the present claim was lodged on 28
October 2010 and that the player was registered with the Respondent on 8 August
2010, the 2009 edition of said regulations (hereinafter: the Regulations) was applicable
to the matter at hand as to the substance.
5.
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 the above-mentioned facts and the documentation
contained in the file.
6.
In particular, the Chamber noted that the Claimant had lodged a claim against the
Respondent, requesting its share of solidarity contribution related to the transfer of
the player from D1 to the Respondent. In particular, the Chamber acknowledged
that the Claimant had initially requested payment of an amount of EUR 219,000,
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but that it subsequently explained having received an amount of EUR 155,856 from
the Claimant, and that it reduced its claim to an amount of EUR 55,222.
7.
In this context, the Chamber took note that it was disputed between the parties
which period of registration of the player was to be taken into account in order to
calculate the due amount of solidarity contribution.
8.
In particular, the Chamber noted that, on the one hand, the Claimant based its
calculation on the player passport of the Football Federation C, while arguing that
the information contained in the player passport on TMS was not correct. In this
respect, the Chamber also noted that the Claimant stated that A2 was a Futsal club
and that the player had remained registered with the Claimant while also being
registered with A1. Furthermore, the Chamber acknowledged the argumentation of
the Claimant according to which it had been due to the Respondent that
incomplete payments had been effected. Equally, the Chamber took into
consideration that, according to the Claimant, the player passport submitted by the
Respondent only indicated the starting date of each registration and that the end
dates of each registration were “invented” by the Respondent.
9.
On the other hand, the members of the Chamber noted that the Respondent stated
that the two player passports displayed different registration periods of the player
and that it had based its calculation on a player passport which was uploaded on
TMS. In particular, the Chamber noted that the Respondent had based its
calculation on a shorter registration period which it had established from the player
passport on TMS. In this respect, the Chamber acknowledged that the Respondent
held that ambiguity in player passports could not be held against the Respondent.
10.
Subsequently, the Chamber deemed it fit to underline that, in principle, it was
undisputed between the parties that a payment of solidarity contribution had
become due, based on the transfer of the player from D1 to the Respondent.
However, the Chamber deemed the disagreement between the parties on the
calculation of the amount due, in particular as regards the exact period of
registration of the player with the Claimant, to be the core issue of the dispute at
hand. Consequently, the Chamber decided to focus its deliberations on establishing
the relevant registration period and on the calculation of the specific amount due.
11.
In this context, the Chamber, first of all, took note that both the Claimant and the
Respondent based their respective calculation on a transfer compensation of EUR
7,500,000.
12.
Furthermore, the Chamber noted that there were different versions of player
passports on file. In particular, the Chamber took note that one player passport,
issued by the Football Federation C, provided for the following registration periods
of the player:
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- “FC N1:
from 14 August 1996 until 16 June 2005 as a professional;
- FC A1:
from 27 August 2003 until 9 September 2005 as an amateur;
- FC L1:
from 4 February 2004 until 15 June 2004 as an amateur;
(...)”.
13.
Equally, the Chamber took into account that another player passport, which was
also issued by the Football Federation C and which was uploaded on TMS, provided
for the following registration periods of the player:
-
14.
“Club N2 :
Club A2:
Club L2:
(…)”.
from 14 August 1996
from 27 August 2003
from 4 February 2004
non-amateur;
amateur;
amateur;
Furthermore, the Chamber took due note of the explanations provided by the
Football Federation C, according to which the aforementioned player passports
were, in principle, identical, but that one version was more specific than the other.
The Chamber carefully studied the clarification of the Football Federation C,
containing the following information about the registration periods of the player:
- from 14 August 1996 until 16 June 2005, the player was registered with [the
Claimant];
- from 4 February 2004 until 15 June 2004, the player was loaned from [the Claimant]
to L1;
- from 27 August 2003 until 9 September 2005, the player was simultaneously
registered with [the Claimant] and the Futsal club A2;
- (…).
15.
In this context, the Chamber was furthermore eager to refer to the confirmation of the
Football Federation C according to which the denominations “Club N2” and “FC N1 ”
referred to the same club.
16.
Bearing in mind all the aforementioned, the Chamber proceeded to an analysis of
the documentation on file, in particular of the two player passports, in order to
establish the exact registration period on which the solidarity contribution had to
be based.
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17.
In this respect, the Chamber noted that the player passport on which the
Respondent had based its calculation was not only issued by the Football Federation
C, but also uploaded on the TMS. Therefore, the members of the Chamber were of
the opinion that, in principle, a party that is responsible for the distribution of the
solidarity contribution has to be able to rely on a document available on TMS.
Consequently, the Chamber deemed that the Respondent could in good faith rely
on the dates established in the player passport on TMS.
18.
In this respect, the members acknowledged that according to the player passport on
TMS, the player appeared to be registered with the Claimant as from 14 August
1996, with A1 as from 27 August 2003 and with L1 as from 4 February 2004. In other
words, the player passport on TMS indicated, at first glance, that the player ceased
to be registered with the Claimant as from 27 August 2003, since it appeared that,
at this date, the player was registered with A1, i.e. with another club than the
Claimant.
19.
However, in this context, the Chamber deemed it fit to recall the content of art. 4
par. 2 of Annex 6 of the Regulations (Rules for the Status and Transfer of Futsal
Players), according to which a player may be registered for one eleven-a-side club at
the same time as being registered for a Futsal club. Consequently, and since the
player passport on TMS indicated that the player was registered with “Futsal Club
A2 ”, the Chamber was of the opinion that the Respondent should have verified
whether the player indeed ceased to be registered with the Claimant as from the
registration with A1 on 27 August 2003, since it was evident from the denomination
“Futsal A2 ” that A1 was likely to be a Futsal club.
20.
On the other hand, as regards the registration of the player with L1 as from 4
February 2004, the Chamber was of the opinion that there were no indications in
the player passport on TMS that the player continued to be registered with the
Claimant after said date. Consequently, the members of the Chamber considered
that the Respondent could in good faith assume that as from 4 February 2004, the
player was no longer registered with the Claimant.
21.
In view of the above, the Chamber established that the relevant registration period
on which the Respondent could in good faith base its calculation of the relevant
amount of solidarity contribution ran as from 14 August 1996 until 3 February 2004.
22.
In other words, the Chamber established that the player was registered with the
Claimant during 11 months of the season 1996/1997, for the entire seasons
1997/1998, 1998/1999, 1999/2000, 2000/2001, 2001/2002, 2002/2003 and for 7
months during the season 2003/2004. Therefore, the Claimant is entitled to a
proportion of 45.82% of the 5% of solidarity contribution based on a transfer
compensation of EUR 7,500,000, i.e. to an amount of EUR 171,825.
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23.
Taking into account that it was undisputed that the Respondent had already
proceeded to the payment of an amount of EUR 155,856 as solidarity contribution,
the Chamber decided to deduct such amount of the aforementioned sum.
24.
In conclusion, the Chamber decided that the Claimant was entitled to receive from
the Respondent the amount of EUR 15,969.
25.
For the sake of completeness, and as regards the question of reimbursement of
payments allegedly made by the Respondent to L1, the Chamber established that
the latter was not a party to the present dispute and that the Chamber could
therefore not decide on any obligations imposed on L1.
26.
Finally, the Chamber referred to art. 18 par. 1 of the Procedural Rules, according to
which in the proceedings before the Dispute Resolution Chamber relating to disputes
regarding solidarity mechanism costs in the maximum amount of CHF 25,000 are levied.
The costs are to be borne in consideration of the parties’ degree of success in the
proceedings.
27.
According to Annex A of the Procedural Rules, the costs of the proceedings are to be
levied on the basis of the amount in dispute.
28.
The amount in dispute to be taken into consideration in the present proceedings
amounts to EUR 55,222 related to the claim of the Claimant. Consequently, the DRC
judge concluded that the maximum amount of costs of the proceedings corresponds to
CHF 10,000 (cf. table in Annex A).
29.
Considering that the case at hand allowed to be dealt with following a reasonable
procedure, but that it did pose considerable factual difficulty and that it was
adjudicated by the Dispute Resolution Chamber in corpore, the Chamber determined
the final amount of costs of the current proceedings to the amount of CHF 8,000.
30.
In view of the above, the Chamber reiterated that the claim of the Claimant is partially
accepted. Therefore, the Chamber decided that the Respondent had to pay an amount
of CHF 6,000 and that the Claimant had to pay an amount of CHF 2,000.
31.
In this respect, the Chamber also took into account that the Claimant had already paid
the amount of CHF 2,000 at the outset of the present proceedings, and that it is
therefore exempted from paying the relevant amount of procedural costs.
32.
The Chamber concluded its deliberations by stating that all further claims of the
Claimant are rejected.
*****
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III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, N1, is partially accepted.
2.
The Respondent, V, has to pay to the Claimant, N1, the amount of EUR 15,969 within
30 days as from the date of notification of this decision.
3.
If the aforementioned sum is not paid within the aforementioned deadline, interest at
a rate of 5% per annum will apply as of expiry of the stipulated time-limit and the
present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for
consideration and a formal decision.
4.
The final amount of costs of the proceedings in the amount of CHF 8,000 is to be paid,
within 30 days as from the date of notification of the present decision, as follows:
4.1. CHF 3,000 by the Respondent, V, to FIFA to the following bank account with
reference to case no.:
UBS Zurich
Account number 366.677.01U (FIFA Players’ Status)
Clearing number 230
IBAN: CH27 0023 0230 3666 7701U
SWIFT: UBSWCHZH80A
4.2. CHF 3,000 by the Respondent, V, to the Claimant, N1.
4.3. CHF 2,000 by the Claimant, N1, to FIFA. Given that the Claimant has already paid
the amount of CHF 5,000 as advance of costs at the start of the present
proceedings, the Claimant is exempted from paying the above-mentioned costs of
the proceedings.
5.
Any further claims lodged by the Claimant, N1, are rejected.
6.
The Claimant, N1 directed to inform the Respondent, V, immediately and directly of the
account number to which the remittances are to be made and to notify the Dispute
Resolution Chamber of every payment received.
*****
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Note relating to the motivated decision (legal remedy):
According to art. 63 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:
Jérôme Valcke
Secretary General
Enclosed: CAS directives
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