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
Philippe Diallo (France), Member
Essa M. Saleh Al-Housani (United Arab Emirates), Member
Philippe Piat (France), Member
Joaquim Evangelista (Portugal), Member
on the matter between the club
Xxx, Xxx,
represented by Mr Xxx, Lawyer,
and the club
Xxx, Xxx,
and the club
Xxx, Xxx,
represented by Mr Xxx, Attorney at law,
as Intervening Party
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 Confederation, the Xxx
player, Xxx (hereinafter: the Player), born on 13 March 1985, was registered for
the Xxx club, Xxx, from 7 July 1999 until 23 May 2002. The sporting season in Xxx
starts in January and ends in December.
2.
In July 2004, the Player was transferred from the Xxx club, Xxx, to the Xxx club,
Xxx, for a transfer compensation in the amount of EUR 8,600,000.
3.
On 28 July 2004, the Player was registered at the Xxx Football Federation for its
affiliated club, Xxx.
4.
On 26 December 2005, Xxx lodged a claim against Xxx at FIFA. In particular, it
requested from Xxx the payment of solidarity contribution in the amount of EUR
110,080 corresponding to 25.6% of 5% of the transfer compensation which was
paid for the transfer of the Player from the Xxx club, Xxx, to Xxx.
5.
In its response, Xxx asserted that it had paid 100% of the transfer compensation to
the Player’s former club, Xxx (not Xxx, as referred to by the Claimant), i.e. it
omitted to deduct 5% relating to solidarity mechanism. Therefore, Xxx deemed
that Xxx should turn to Xxx in order to collect the amount corresponding to its
proportion of the 5% solidarity contribution.
6.
Furthermore, the Xxx stated that, if decided otherwise, the Xxx club, Xxx, should
be responsible to pay solidarity contribution to Xxx. In this respect, the Xxx
affirmed that the Player was only formally transferred from Xxx to Xxx. In fact,
according to Xxx, the transfer of the Player was made on behalf of Xxx, the holder
of an unilateral option to transfer the Player free of charge from Xxx at the
beginning of the season 2006/2007, which remunerated Xxx in the amount of the
transfer compensation paid by Xxx.
7.
On 2 May 2006, FIFA provided Xxx with a copy of the entire file and informed Xxx,
Xxx and Xxx of the jurisprudence of the Dispute Resolution Chamber in similar
cases, in accordance with which the player’s new club 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.
8.
In continuation, Xxx stated that on 27 November 2002 it had acquired from Xxx all
the “federative rights” to the Player, which the latter was holding. As a
consequence, Xxx was of the opinion that Xxx, since it had no “federative rights”
to the Player anymore, was not entitled to claim solidarity contribution for the
transfer in question of the Player. In particular, Xxx insisted that Xxx, by its
declaration dated 5 February 2003, waived its rights to any commission,
percentages and/or compensation which might fall due in any future transaction
Solidarity contribution for the transfer of the player Xxx
(Club Xxx, Xxx / Club Xxx, Xxx, and Club Xxx, Xxx)
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involving the Player. According to the wording of the said declaration “Xxx state
that it transfer to Xxx … the Federative and Financial Rights of the Professional
Football Athlete … It state and recognize in any instance which behave the Xxx
Football Rules and the international (FIFA) … which doesn’t have any right or
resignation to any indemnification, percentage, or commission for future
negotiations in Xxx or another country (transfer, or sale of the federative rights or
financial) for this athlete”.
9.
Xxx stated that, should it be condemned to pay the solidarity contribution in
question, Xxx should be obliged to reimburse the relevant amount.
10.
Long time after the phase of investigation had been closed, Xxx emphasised with
regard to Xxx’s latest comments that its right to claim solidarity contribution was
guaranteed by the FIFA Regulations and that Xxx should be responsible for the
distribution of the solidarity mechanism regardless whether an agreement on
“federative rights” had been concluded between it and Xxx. In this regard, Xxx
stated that the relevant waiver declaration on the basis of the aforementioned
agreement would not apply to the present dispute regarding solidarity
contribution, since therein it had never renounced its entitlement to solidarity
contribution, but only its right to compensation related to transfers of the Player
as far as the “federative rights” to the Player were concerned.
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 26 December
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.
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 Xxx in connection with the transfer of the professional
Player during the course of a contract.
Solidarity contribution for the transfer of the player Xxx
(Club Xxx, Xxx / Club Xxx, Xxx, and Club Xxx, Xxx)
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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 28 July 2004. Equally the Chamber took note that the claim was
lodged at FIFA on 26 December 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 Xxx requested from Xxx the payment
of solidarity contribution in the amount of EUR 110,080, corresponding to 25.6%
of 5% of the transfer compensation which was paid for the relevant transfer of
the Player.
6.
In this regard, the Chamber established that according to 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 is 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.
7.
In the present case, the Chamber outlined that the entire period to be taken into
consideration with regard to the solidarity contribution would run from the
sporting season 1997, when the Player was 12, until the sporting season 2008, at
the age of 23.
8.
In continuation, the Chamber duly noted that, on the one hand, Xxx (the Player’s
new club) asserted having paid the entire amount of EUR 8,600,000 agreed upon
as transfer compensation to Xxx (the Player’s previous club). In other words, Xxx
omitted to deduct 5% relating to solidarity mechanism. Furthermore, the Chamber
acknowledged that Xxx, consequently, deemed that Xxx should turn to Xxx in
order to collect the amount corresponding to its proportion of the 5% solidarity
contribution.
9.
On the other hand, the Chamber noted that according to Xxx Xxx was not entitled
to claim solidarity contribution for the transfer of the Player due to the fact that,
based on the agreement on “federative rights” signed between Xxx and Xxx on 24
May 2002, it had acquired from Xxx all the “federative rights” to the Player. In
particular, the Chamber took also note of Xxx’s allegation that Xxx, by a
declaration dated 5 February 2003, had waived its rights to any commission,
percentages and/or compensation which might fall due in any future transaction
involving the Player.
Solidarity contribution for the transfer of the player Xxx
(Club Xxx, Xxx / Club Xxx, Xxx, and Club Xxx, Xxx)
4
10.
In this respect, the Chamber emphasised that, since 1 September 2001, the date of
the entry into force of the Regulations, the concept of “federative rights” to
players does not exist anymore. It was replaced by the principle of maintenance of
contractual stability between the contracting parties, i.e. professional players and
clubs, comprising, in particular, that compensation for unilateral breach of
contract without just cause is to be paid by the party in breach of contract in
favour of the counterparty (cf. art. 21 of the Regulations). Consequently, and in
line with its well-established jurisprudence, the Chamber decided that the relevant
agreement on “federative rights” is null and void and, thus, does not prejudice
Xxx’s entitlement to solidarity contribution.
11.
Furthermore, the Chamber determined that it cannot be clearly established
whether Xxx, by signing the waiver declaration in question, renounced only its
right to compensation related to transfers of the player as far as the “federative
rights” to the player are concerned or also its right to solidarity contribution. In
this sense, the Chamber emphasised that, in accordance with the legal principle of
the burden of proof, which is a basic principle in every legal system, a party
asserting a fact has the obligation to prove the same. Therefore, due to the lack of
proof regarding the alleged renouncement of Xxx to solidarity contribution, and
in application of the aforementioned principle, the Chamber concluded that Xxx
has not agreed to waive its entitlement to solidarity contribution.
12.
Taking into account that the objections of Xxx could not be accepted, 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 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.
13.
The Chamber then referred to art. 10 of the Regulations governing the
Application of the Regulations, which provides the figures for the distribution of
the solidarity contribution, according to the time the player was effectively trained
by the clubs involved.
14.
In the present case, the Chamber outlined that according to the confirmation of
the Xxx Football Confederation the period to be taken into consideration (period
of registration of the Player for Xxx) went from July 1999 until May 2002, when
the player was between the ages of 14 and 17. In this respect, the Chamber
concluded that the period of effective training to be taken into account
corresponds to 5 months in the year 1999, the entire season in the year 2000, the
entire season in the year 2001 and 5 months in the year 2002, overall 2 years and
10 months.
15.
Therefore, the Chamber established that, in accordance with the breakdown
provided for in art. 10 of the Regulations governing the Application of the
Solidarity contribution for the transfer of the player Xxx
(Club Xxx, Xxx / Club Xxx, Xxx, and Club Xxx, Xxx)
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Regulations the claim of Xxx to receive 25,6 % of the 5% of the compensation
paid in relation to the transfer of the player Xxx from Xxx to Xxx, is justified.
16.
In this regard, the Chamber acknowledged that according to the transfer contract
remitted to the file the Player was transferred for the amount of EUR 8,600,000.
17.
In view of all of the above, the Dispute Resolution Chamber decided that Xxx must
pay to Xxx EUR 110,080 as solidarity contribution in relation to the transfer of the
player Xxx and that Xxx must reimburse the same amount of EUR 110,080 to Xxx.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of Xxx is accepted.
2.
Xxx has to pay the amount of EUR 110,080 to Xxx, within 30 days as from the
date of notification of this decision.
3.
In the event that the above-mentioned sum is not paid within the stated deadline,
an interest rate of 5% per year will apply as of expiry of the aforementioned time
limit and the present matter shall be submitted to FIFA’s Disciplinary Committee,
so that the necessary disciplinary sanctions may be imposed.
4.
Xxx is directed to inform Xxx 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.
5.
Xxx has to reimburse the amount of EUR 110,080 to Xxx, within 30 days as from
the date of notification of this decision.
6.
In the event that the above-mentioned sum is not paid within the stated deadline,
an interest rate of 5% per year will apply as of expiry of the aforementioned time
limit and the present matter shall be submitted to FIFA’s Disciplinary Committee,
so that the necessary disciplinary sanctions may be imposed.
7.
Xxx is directed to inform Xxx 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
8.
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 directly to the CAS 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).
Solidarity contribution for the transfer of the player Xxx
(Club Xxx, Xxx / Club Xxx, Xxx, and Club Xxx, Xxx)
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The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
CH-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
Solidarity contribution for the transfer of the player Xxx
(Club Xxx, Xxx / Club Xxx, Xxx, and Club Xxx, Xxx)
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