Solidarity Contribution
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 8 June 2007,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Philippe Diallo (France), member
Zola Malvern Percival Majavu (South Africa), member
Theo van Seggelen (the Netherlands), member
John Didulica (Australia), member
on a matter between
the club, A, from X
and
the club, B, from Y
and
the club, C, from Z
as intervening party
regarding the solidarity contribution related to the
transfer of the player D.
I.
Facts of the case
1.
According to the statement of the (former) Football Association of Z and X, player
D (hereinafter: the player), born on 21 June 1980, was registered with A from 8
September 1989 until 12 December 1998, between the ages of 9 and 18.
2.
On 26 August 2003, an agreement regarding the transfer of the player from club C
to club B, for a compensation of EUR 3,556,500 was concluded between the
aforementioned parties. According to this agreement, the following variable parts
are added to the aforementioned fixed amount of transfer compensation for every
season that the player plays at club B:
o
o
o
Season 2004/2005: EUR 220,000
Season 2005/2006: EUR 277,500
Season 2006/2007: EUR 330,000.
An additional variable amount of EUR 500,000 is added in case of club B
participation in the Champions League during the time in which the player is
playing at the club or in case of a subsequent transfer of the player to another club
before 30 June 2006.
3.
On 27 June 2005, club A lodged a formal complaint at FIFA, requesting payment of
the solidarity contribution in accordance with art. 25 of the Regulations for the
Status and Transfer of Players and Chapter IV of the Regulations Governing the
Application of the Regulations for the Status and Transfer of Players (both edition
2001) in the amount of 3.25% of the transfer compensation plus 5% interest for
late payment.
4.
In its response to the claim, club B put forward that it had contractually agreed with
club C that the latter had the obligation to pay the relevant amounts of solidarity
contribution. It hereby referred to art. 3 of the agreement which stipulates that the
solidarity contribution corresponds to 5% of the compensation stipulated above
which club c commits to distribute to the clubs which trained the player. The
original wording in French reads: “la contribution de solidarité correspond à 5% de
l’indemnité prévue ci-dessus que le club C ’engage à redistribuer aux clubs
formateurs”. By means of this statement, club B asserts having paid 100% of the
transfer compensation to the player’s former club, club C, and that therefore, the
latter club is responsible to pay the relevant solidarity contribution.
5.
In the following, FIFA provided club C with a copy of the entire file and informed all
three parties, i.e. club A, club B and club C about the jurisprudence of the Dispute
Resolution Chamber in similar cases, in accordance with which the player’s new club
Distribution of the solidarity contribution for the player D.
(Club A, from X / club B, from Y and club C, from Z)
2
is ordered to remit the 5% solidarity contribution to the club(s) involved in the
player’s training in strict application of art. 11 of the Regulations governing the
Application of the 2001 Regulations for the Status and Transfer of Players. At the
same time, the player’s former club is ordered to reimburse 5% of the
compensation that it received from the player’s new club to the player’s new club.
6.
In its response to the aforementioned letter of FIFA, club C asserted to have paid to
club A a share of 40% of the transfer compensation which it had received from club
B, in accordance with the transfer agreement concluded between it and Club A.
Club C is of the opinion that with the payment of 40% of the transfer
compensation, club A has no right to claim solidarity contribution as it allegedly is
included in the share of 40% of the compensation agreed upon for the subsequent
transfer of the player.
7.
Club A strongly objected to the arguments of club C and stated that when the
player was transferred from it to club C on 18 December 1998, the parties had,
instead of agreeing on a lump sum payment, agreed upon a payment of a share of
40% of any amount that club C would receive in case of a subsequent transfer of
the player. Club A rejected the allegation that the parties had meant to include the
payment of solidarity contribution in the share of 40% in particular as the
mechanism of solidarity contribution was not even introduced by FIFA until 2001.
8.
Upon FIFA’s request to be informed about the transfer compensation (both fix and
variable part) actually paid to club C, club B informed FIFA that the total amount of
transfer compensation paid to club C amounted to EUR 4,554,000. club B reiterated
in its comments that the transfer agreement stipulated that the solidarity
contribution is included in the transfer compensation and that therefore, club C has
to pay the solidarity contribution.
9.
The Football Association of X informed FIFA about the dates of its football seasons
in the relevant years:
1992:
16 February - 24 May
Season 1992/93
22 August - 20 June
Season 1993/94
22 August - 22 May
Season 1994/95:
20 August - 27 May
Season 1995/96:
12 August - 18 May
Season 1996/97:
10 August - 31 July
Season 1997/98:
9 August - 16 May
Season 1998/99:
8 August - 20 March
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 27 June 2005, as a consequence the
Distribution of the solidarity contribution for the player D.
(Club A, from X / club B, from Y and club C, from Z)
3
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 club A, in connection with the transfer of the professional D 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 August 2003. Equally the Chamber took note that the claim was
lodged at FIFA on 27 June 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 on 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 established in art. 25 par.1 of the
Regulations in connection with art. 11 par. 1 of the Regulations governing the
Application 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.
6.
In the present case, the Chamber outlined that the period to be taken into account
with regard to the solidarity contribution runs from 22 August 1992 when the
player was 12, until 12 December 1998 when the player was 18.
7.
In this respect, the Chamber duly noted that club B (the player’s new club) asserted
having paid the entire amount of EUR 4,554,000 agreed upon as transfer
compensation, to club C (the player’s previous club) and that therefore, the latter is
responsible to pay the relevant solidarity contribution to club A. In other words,
club B omitted to deduct 5% of the relevant transfer compensation related to the
solidarity mechanism. This fact was not contested by club C.
Distribution of the solidarity contribution for the player D.
(Club A, from X / club B, from Y and club C, from Z)
4
8.
Furthermore, the Chamber observed that club B put forward that it had
contractually agreed upon in art. 3 (last paragraph) of the transfer agreement
concluded with club C that the latter would distribute the relevant amount of
solidarity contribution to the training clubs.
9.
After examining art. 3 of the transfer agreement concluded between club B and
club C, the Chamber considered that the relevant clause stipulated, in contrary to
art. 11 of the Regulations governing the Application of the Regulations for the
Status and Transfer of Players that the transfer compensation agreed upon between
the two parties included the relevant payment of solidarity contribution and that
the player’s former club, C has to pay the relevant payment of the solidarity
contribution to the training clubs.
10.
In continuation, 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. 11 par. 1 of the Regulations
governing the Application 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.
11.
In application of the said jurisprudence, the Chamber decided that the argument of
club B could not be taken into consideration and thus has to be rejected.
12.
The deciding authority then took note that the intervening club, C, contested its
obligation to pay solidarity contribution to club A as it had already paid a share of
40% of the transfer compensation received from club B to club A as “sell-on fee”
and hereby asserted that the relevant solidarity contribution was included in this
amount.
13.
The Chamber drew its attention to the transfer agreement concluded between club
C and club A on 18 December 1998 and noted that the parties had, instead of
agreeing on a transfer compensation by means of a lump sum payment, agreed
upon on a payment of a share of 40% in case the player would be transferred
internationally from club C to another club.
14.
In this respect, the Chamber stated that the aforementioned agreement had been
concluded on 18 December 1998 whereas the mechanism of solidarity contribution
had not been introduced until the entry into force of the 2001 edition of the
Regulations. The Chamber therefore concluded that the parties could not have
made any provision regarding the solidarity contribution as this mechanism did not
exist at the date of the conclusion of the agreement. For the sake of good order,
the Chamber added that the relevant agreement did not contain any clause which
could lead to the assumption that club C should be exempted from paying solidarity
contribution to club A and that the argument of club C therefore had to be
rejected.
Distribution of the solidarity contribution for the player D.
(Club A, from X / club B, from Y and club C, from Z)
5
15.
The Chamber then referred to art. 10 of the Regulations governing the Application
of the Regulations which provides the percentage of the share for the distribution
of the solidarity contribution, according to the period at which the player was
effectively trained by the clubs involved.
16.
In the present case, the Chamber outlined that according to the confirmation of the
(former) Football Association of Z and X, the period of registration of the player
with club A lasted from 8 September 1989 until 12 December 1998, at the player’s
age of 9 until 18. In this respect, the Chamber concluded that the period of effective
training to be taken into account corresponds to the period from 22 August 1992
until 12 December 1998 at the player’s age of 12 until 18 corresponding to six
sporting seasons and four months.
17.
Therefore, the Chamber established that, in accordance with the breakdown
provided for in art. 10 of the Regulations governing the Application of the
Regulations, club A is entitled to receive 53. 3 % of the 5% of the compensation
paid in relation to the transfer of the player D from club C to club B.
18.
Finally, the Chamber noted that according to the transfer agreement remitted to
the file and the information provided by club B regarding the variable part of the
transfer compensation, the player D was transferred for a total amount of EUR
4,554,000. In particular, the French club explained that it paid EUR 3,556,500 on 12
September 2003, EUR 500,000 on 22 October 2004, EUR 220,000 on 8 March 2005
and EUR 277,500 on 26 July 2006. These facts were not contested by club C.
19.
Based on all of the above, the Dispute Resolution Chamber decided that club B has
to pay to club A 53. 3 % of the 5% of the transfer compensation paid in relation to
the transfer of the player D, i.e. 2, 6 % of the whole transfer compensation which
equals to EUR 121,440, and that club C has to reimburse the amount of EUR 121,440
to club B.
20.
Finally, the Chamber referred to club A demand for default interest. In this respect
and with regard to the payment mode, the members of the Chamber referred to its
well-established jurisprudence, according to which in case of contingent payments,
the new club shall pay the solidarity contribution to the training club(s) 30 days
after the date of such payments. The Chamber added, on a side note, that based on
this jurisprudence, the revised Regulations (edition 2005) explicitly provide for this
rule (cf. art. 2 par. 1 of annex 5 to the revised Regulations).
21.
Consequently, the Chamber remarked that the amount of EUR 3,556,500 had been
due 30 days after the registration of the player, i.e. at the end of September 2003
and the amount of EUR 500,000 was paid by club B on 22 October 2004. Regarding
the payments for every season in which the player played at club B, the Chamber
noted that no due date has been stipulated in the transfer agreement, however,
concluded that the relevant payments must be considered to have been due at the
end of the relevant season. Therefore, the amount of EUR 220,000 was due at the
Distribution of the solidarity contribution for the player D.
(Club A, from X / club B, from Y and club C, from Z)
6
end of the season 2004/2005, i.e. on 30 May 2005 and EUR 277,500 at the end of
the season 2005/2006, i.e. on 30 May 2006.
22.
On account of the aforementioned, the Chamber deemed that the following
default interest payment of 5% p.a. is to be applied according to the agreed
contingent payments:
a. default interest of 5% p.a. on EUR 94,840 equal to 2. 6 % of the above-decided
solidarity contribution due to club A, as of 30 days after the registration of the
player, i.e. 30 September 2003;
b. default interest of 5% p.a. on EUR 13,333.35, i.e. 2. 6 % of the above-decided
solidarity contribution due to club A, as of the day on which the aforementioned
payment was made, i.e. 22 October 2004;
c. default interest of 5% p.a. on EUR 5,866.65, i.e. 2. 6 % of the above-decided
solidarity contribution due to club A, as of the day on which the aforementioned
amount was due, i.e. on 30 May 2005 and
d. default interest of 5% p.a. on EUR 7,400, i.e. 2. 6 % of the above-decided
solidarity contribution due to club A, as of the day on which the aforementioned
amount was due, i.e. on 30 May 2006.
23.
Taking into account all of the above, the Dispute Resolution Chamber decided that
club B must pay EUR 121,440 to club A as solidarity contribution in relation to the
transfer of the player D from the intervening party to club B, plus 5% default
interest per year on 94,840 starting on 30 September 2003, on EUR 13,333.35
starting on 22 October 2004, on EUR 5,866.65 starting on 30 May 2005 and on EUR
7,400 starting on 30 May 2006, all applicable until the effective date of payment to
club A. Furthermore, the Chamber reiterated that club C has to reimburse the
amount of EUR 121,440 to club B.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the club, A, is partially accepted.
2.
Club B, has to pay the amount of EUR 121,440 to club A within 30 days as of the
date of notification of this decision.
3.
Club B has to pay default interest of 5% p.a. until the effective date of payment to
club A, as follows:
3.1. on EUR 94,840, as of 30 September 2003;
Distribution of the solidarity contribution for the player D.
(Club A, from X / club B, from Y and club C, from Z)
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3.2. on EUR 13,333.35, as of 22 October 2004;
3.3. on EUR 5,866.65, as of 30 May 2005 and
3.4. on EUR 7,400, as of 30 May 2006.
4.
If the sums according to the above-stated points 2 and 3 are not paid within the
aforementioned deadlines, the present matter shall be submitted to FIFA’s
Disciplinary Committee, so that the necessary disciplinary sanctions may be imposed.
5.
Club A is directed to inform 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 claims presented by club A are rejected.
7.
Club C has to reimburse the amount of EUR 121,440 to Paris 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.
9.
Club B is directed to inform club Ca 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]
Distribution of the solidarity contribution for the player D.
(Club A, from X / club B, from Y and club C, from Z)
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www.tas-cas.org
For the Dispute Resolution Chamber:
Jérôme Valcke
General Secretary
Encl. CAS directives
Distribution of the solidarity contribution for the player D.
(Club A, from X / club B, from Y and club C, from Z)
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