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 the claim presented by the club
A, from X
as Claimant
against the club
B, from Y
as Respondent
regarding the solidarity contribution related to the
transfer of the player C.
I.
Facts of the case
1.
According to the player passport of player C (hereinafter: the player), which was
issued by the Football Federation of X, the player, born on 8 November 1980, was
registered with A (hereinafter: the Claimant) as follows:
o
o
2 February 2001 - 31 December 2001 (loaned by D)
at the player’s age of 21
27 June 2002 - 31 December 2003 at the player’s ages of 22 to 23.
2.
On 30 June 2005, club B., (hereinafter: the Respondent) and club E, concluded an
agreement regarding the transfer of the player from the latter to the Respondent
for an agreed transfer compensation of EUR 2,350,000, payable in three instalments,
the last one of which was due on 30 June 2006. A confirmation letter dated 2
January 2006, issued by FC Porto in Portuguese language was submitted to the file,
by means of which the latter confirmed that the transfer compensation amounted
to EUR 2,350,000.
3.
The Football Federation of Y informed FIFA that the registration of the player with
the Respondent occurred on 19 August 2005.
4.
On 3 March 2006, the Claimant lodged a formal complaint at FIFA requesting
payment of its proportion of solidarity contribution for the above-mentioned
periods of time and the period from 1 January 2004 until 30 August 2004. It claimed
the amount of EUR 36,190, equal to 1.54% of the total transfer compensation.
5.
In its response to the claim, the Respondent stated with respect to the period from 2
February 2001 until 31 December 2001, that in its earlier correspondence, the
Claimant had never made reference to this period of time. The Respondent added
that it had also been contacted by the club D, which also considered itself entitled
to receive solidarity contribution for the same period of time, i.e. from 2 February
2001 until 31 December 2001. The Respondent submitted a letter received from club
D dated 7 March 2006 by means of which the latter informed the Respondent that
the player had been registered with it from 1 July 2000 until 14 June 2002 and that
it asked for payment of solidarity contribution for the said period of time. The
Respondent further stated that the period from 1 January 2004 until 30 August 2004
should not be taken into account as it corresponds to the season of the player’s 24th
birthday.
6.
In its comments thereto, the Claimant informed that in the period from 2 February
2001 until 31 December 2001, the player had been loaned from club D (assignor
club) to it (assignee club). The Claimant continued that being the club which actually
trained the player, the assignee club has the right to receive solidarity contribution
for the relevant loan period. Finally, the Claimant reduced its claim to the amount
of EUR 29,375.
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A, from X / B, from Y
7.
In its closing arguments, the Respondent reiterated that the Claimant and club D
had different opinions regarding the entitlement for solidarity contribution for the
period of loan in 2001, however, generally accepted the fact that it has to pay
solidarity contribution to the entitled club.
8.
The Claimant submitted a copy of the personal file of the Claimant, issued by the
Football Federation of X, stating that the player was transferred to club D on 13 July
2000 and that the player was then loaned from club D to the Claimant from 2
February 2001 until 31 December 2001.
9.
According to the information received from the Football Federation of X, the
sporting seasons in X in the relevant years ran from January until December.
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 3 March 2006, 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 on 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 connection with art. 22 (d) of the aforementioned Regulations, the 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 the Claimant in connection with the transfer of the professional C
Clemente 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 19 August 2005. Equally the Chamber took note that the claim was
lodged at FIFA on 3 March 2006. In view of the aforementioned, the Chamber
concluded that the current FIFA Regulations for the Status and Transfer of Players
(edition 2005, hereinafter: the Regulations) are applicable on the case at hand as to
the substance.
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A, from X / B, from Y
5.
In continuation, and entering into the substance of the matter, the members of the
Chamber started by acknowledging the documentation contained in the file and
took note that according to the player passport, the player involved, born on 8
November 1980, was registered with the Claimant from 2 February 2001 until 31
December 2001 with the remark “loaned by D” as well as from 27 June 2002 until 31
December 2003.
6.
The Chamber further noted that it was an undisputed fact that the player had been
transferred from the club E to the Respondent on 30 June 2005 for a transfer
compensation of EUR 2,350,000.
7.
Furthermore, the Chamber underlined that the Claimant is claiming the outstanding
relevant proportion of the 5% solidarity contribution from the Respondent in
connection with the aforementioned transfer of the player for the period from 2
February 2001 until 31 December 2001 and from 27 June 2002 until 30 August 2004.
8.
Equally, the Chamber noted that the Respondent did not generally contest its
obligation to pay solidarity contribution to the Claimant. However, the Chamber
took note that the Respondent did not know which club (the Respondent or club D
was entitled to receive solidarity contribution for the period from 2 February 2001
until 31 December 2001. Additionally, the Chamber acknowledged that the
Respondent contested its obligation to pay any solidarity contribution with respect
to the period from 1 January 2004 until 30 August 2004, as it claims that it
corresponds to the season of the player’s 24th birthday.
9.
In this regard, the Chamber referred to art. 21 and art. 1 of annex 5 of the
Regulations. According to these articles, if a Professional moves during the course of
a contract, a proportion (5%) of any compensation paid to the previous club will be
distributed to the club(s) involved in the training and education of the player. This
distribution will be made in proportion to the number of years the player has been
registered with the relevant clubs between the sporting seasons of his 12th and 23rd
birthdays.
10.
In the present case, in order to determine the relevant period of time, the Chamber
referred to the statement of the Football federation of X by means of which it
confirmed that from 2 February 2001 until 31 December 2001, the player was loaned
by the Claimant from club D.
11.
In this respect, and referring to its well-established jurisprudence, the Chamber
stated that the club which had actually trained and educated the player, is entitled
to receive solidarity contribution for the period of loan as the costs for the training
of the player obviously occurred at this club. Therefore, the Chamber deemed that
the Claimant is entitled to receive solidarity contribution for the period it had
actually trained the player on a loan basis, namely from 2 February until 31
December 2001.
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A, from X / B, from Y
12.
Furthermore, with respect to the period from 27 June 2002 until 31 December 2003,
the Chamber stated that there was no doubt that the Claimant was entitled to
receive solidarity contribution for this period.
13.
The Chamber then drew its attention to the period from 1 January until 30 August
2004 and hereto stated that constituting the season of the player’s 24th birthday, this
period exceeds, in application of art. 1 of annex 5 of the Regulations, the period for
which training clubs were entitled to receive solidarity contribution. The Chamber
therefore rejected the Claimant’s claim for solidarity contribution for this period.
14.
In view of the above, the Chamber concluded that the period to be taken into
consideration with regard to the solidarity contribution lasts from 2 February 2001
until 31 December 2001, i.e. the sporting season of the player’s 21st birthday and
from 27 June 2002 until 31 December 2003, i.e. the sporting seasons of the player’s
22nd and 23rd birthday. Consequently, the Chamber concluded that the period of
effective training to be taken into account corresponds to one sporting season and
17 months.
15.
The Chamber further made reference to art. 1 of annex 5 of the Regulations which
sets out the proportions for the distribution of the solidarity contribution according
to the time that the player was effectively trained by the clubs involved.
16.
Therefore, the Chamber established that, in accordance with the breakdown
provided for in art. 1 of annex 5 of the Regulations, the Claimant is entitled to
receive 24.17% of the 5% of the compensation paid in relation to the transfer of
the player from club D to the Respondent.
17.
As a result, the Chamber concluded that in the present case, the Claimant is entitled
to receive solidarity contribution for the training and education of the player of a
total of 24.17% of the 5% of solidarity contribution of the transfer compensation of
EUR 2,350,000 which equals to the amount of EUR 28,396.
18.
In the light of all of the above, the Dispute Resolution Chamber decided that the
Respondent has to pay the amount of EUR 28,396 to the Claimant.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, A, is partially accepted.
2.
The Respondent, B has to pay the amount of EUR 28,396 to the Claimant, A, within
30 days following the date of the notification of the present decision.
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A, from X / B, from Y
3.
In the event that the aforementioned amount is not paid within the stated
deadline, an interest rate of 5% per year will apply as of expiry of the
aforementioned deadline and the present matter shall be submitted to the FIFA
Disciplinary Committee, so that the necessary disciplinary sanctions may be imposed.
4.
Any further claims of A are rejected.
5.
The Claimant, A, is directed to inform the Respondent 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:
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:
________________________
Jérome Valcke
General Secretary
Enclosed: CAS directives
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A, from X / B, from Y