Solidarity Contribution
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 22 June 2007,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Essa M. Saleh Al-Housani (Uniated Arab Emirates), member
Philippe Diallo (France), member
Joaquim Evangelista (Portugal), member
Philippe Piat (France), member
on the claim presented by the club
Xxx, Xxx,
represented by Mrs Xxx, Attorney at law,
as Claimant
against the club
Xxx, Xxx,
as Respondent
regarding the solidarity contribution related to
the transfer of the player Xxx
I.
Facts of the case
1.
According to an official confirmation of the Xxx Football Federation, the player
Xxx (hereinafter: the player), born on 16 August 1977, was registered for the club
Xxx (hereinafter: the Claimant), from January 1991 until May 2000, i.e. seasons
from his 13th to his 22nd birthday.
2.
In August 2005, the player was transferred from the club Xxx to club Xxx
(hereinafter: the Respondent).
3.
On 30 August 2005, the player was registered with the Xxx Football Association
for its affiliated club, the Respondent.
4.
On 21 November 2005, the Claimant lodged a claim against the Respondent at
FIFA requesting 90% of 5% of the transfer compensation which had been paid for
the transfer of the player from the club Xxx to the Respondent.
5.
In its response, the Respondent stated that the player was “free agent” by the
time he had signed an employment contract with it and, thus, no transfer
compensation had ever been paid to the former club of the player. This fact was
confirmed by a statement of the player of 25 November 2005, by means of which
he assured that he had not been contractually bound to any club by the time he
had signed the employment contract with the Respondent.
6.
In its replica, the Claimant asserted that the player had had an employment
contract with the club Xxx for the season 2005/2006 and that he had been
registered as a professional player with the Xxx Football Federation for the season
2005/2006. Therefore, the Claimant was of the opinion that the player had not
been “free agent” by the time he moved to the Respondent and, thus, a transfer
compensation in the amount of approximately EUR 400,000 to EUR 500,000 had
been paid by the latter.
7.
In this sense, the Claimant, taking into account that the player had been member
of representative teams of Xxx for many years, requested that, in the event that
the Xxx Football Association could not provide the transfer agreement indicating
the exact amount paid, a transfer compensation in the amount of EUR 500,000
should be established by the competent deciding body.
8.
In its duplica, the Respondent insisted on not having made any payments to any
club for any reason in connection with the transfer of the player. In particular, it
provided FIFA with a declaration, dated 12 April 2006, issued by the official
Distribution of the solidarity contribution for the player Xxx
(Club Xxx, Xxx / Club Xxx, Xxx)
2
auditors of the Respondent, XXX, by means of which it was confirmed that no
payments were made by the Respondent in connection with the transfer of the
player during the year 2005.
9.
In continuation, on 24 May 2006, FIFA contacted the Respondent asking for
permission to contact the Xxx Football Federation respectively its affiliated club,
Xxx, in order to clarify whether the Respondent had paid any compensation for
the transfer of the player to the aforementioned Xxx club, or not.
10.
The Respondent, by its correspondence dated 26 May 2006, granted the
permission in question to FIFA.
11.
On 2 June 2006, 17 July 2006 and 12 March 2007, FIFA contacted the Xxx Football
Federation and asked it to confirm whether its affiliated club, Xxx, concluded a
transfer agreement with the Respondent and, if so, to provide FIFA with a copy of
the said contract in order to confirm the relevant amount paid as transfer
compensation, if any.
12.
Thereupon, both the Xxx Football Federation and its affiliated club, Xxx, omitted
to provide FIFA with any response in this regard.
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 21 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 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.
Distribution of the solidarity contribution for the player Xxx
(Club Xxx, Xxx / Club Xxx, Xxx)
3
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 Xxx.
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 30 August 2005. Equally the Chamber took note that the claim
was lodged at FIFA on 21 November 2005. 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.
5.
In continuation, the members of the Chamber emphasized that in accordance with
art. 21 and art. 1 of Annex 5 of the Regulations, as a general rule, if a professional
player moves during the course of a contract, a proportion of 5% of any
compensation, with the exception of training compensation, paid to his former
club will be deducted from the total amount of this compensation and distributed
by the new club as solidarity contribution to the clubs involved in his training and
education over the years.
6.
In light of the above, the Chamber continued its deliberation by stating that the
provisions of the solidarity contribution apply only in the event of a player
transferring between two clubs affiliated to different associations and if a transfer
compensation was paid by the player’s new club to the player’s former club, from
where the player was being transferred during the course of a contract.
7.
As a result, the Chamber stressed that, first and foremost, it needed to address the
question whether the player had effectively been transferred during the course of
an employment contract with his former club, i.e. the club Xxx and if, therefore, a
transfer compensation had been paid by the player’s new club, i.e. the
Respondent, to the player’s former club, i.e. the aforementioned Xxx club.
8.
In this regard, the Chamber took due note that, on the one hand, the Respondent
stated that the player was “free agent” by the time he had been engaged and,
thus, no transfer compensation had ever been paid for the player’s transfer in
August 2005.
Distribution of the solidarity contribution for the player Xxx
(Club Xxx, Xxx / Club Xxx, Xxx)
4
9.
On the other hand, the Chamber acknowledged that the Claimant asserted that
the player, since he had had an employment contract with the club Xxx for the
season 2005/2006, had not been “free agent” by the time he had moved to the
Respondent and, consequently, a transfer compensation in the amount of
approximately EUR 400,000 to EUR 500,000 had been paid by the latter.
10.
In continuation, referring to the above considerations (cf. points II. 5. - 7.) the
Chamber took into account that the Respondent provided a copy of a statement
dated 25 November 2005 of the player, by means of which he assured that he had
not been contractually bound to any club by the time he had signed the
employment contract with the Respondent and, in particular, a declaration, dated
12 April 2006, issued by the official auditors of the Respondent, XXX, by means of
which it was confirmed that no payments had been made by the Respondent in
connection with the transfer of the player during the year 2005.
11.
Furthermore, the Chamber considered particularly the fact that the club Xxx did
not provide a possible transfer agreement in order to confirm the relevant amount
paid as transfer compensation, if any, despite of having been invited to do so
repeatedly.
12.
Moreover, the Chamber also acknowledged that the Claimant presented an
extract of the register of the Xxx Football Federation, indicating that the player
based on a contract for the season 2005/2006 had been registered for its affiliated
club, Xxx, from 3 August until 30 August 2005, but did not provide the relevant
employment contract.
13.
Finally, the Chamber noted that neither the Claimant nor the Xxx Football
Federation presented any document and/or contract related to possible financial
terms in connection with the transfer of the player agreed between the
Respondent and the former club of the player, Xxx, despite having had the
opportunity to do so.
14.
As a result, the members of the Chamber unanimously concluded that according
to the documentation at their disposal, it cannot be established that the player
had been transferred during the course of an employment contract or that any
transfer compensation had been paid by the Respondent to the player’s former
club.
15.
For all the above reasons, the Dispute Resolution Chamber decided to reject the
Claimant’s request.
Distribution of the solidarity contribution for the player Xxx
(Club Xxx, Xxx / Club Xxx, Xxx)
5
III.
Decision of the Dispute Resolution Chamber
1.
The claim lodged by the Claimant, Xxx, is rejected.
2.
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:
Jérôme Valcke
General Secretary
Encl.
CAS directives
Distribution of the solidarity contribution for the player Xxx
(Club Xxx, Xxx / Club Xxx, Xxx)
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