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, Z
as Intervening party
regarding the solidarity contribution related to the
transfer of the player D.
I.
Facts of the case
1.
According to a written statement of the football association of X, the player D,
born on 31 July 1976, was registered for its affiliated club, A, as an amateur in
January 1989 until 24 September 1994 and as a professional from 25 September
1994 until March 1997.
2.
On 11 July 2005, the club C from the country Z and the club B from the country Y,
signed a transfer agreement concerning the player D for the amount of EUR
300,000. A clause regarding the transfer compensation is contained in the
employment contract signed between the player in question and B “300,000 €
(Three Hundred Thousand Euros only) for C (TRANSFER FEE)”. A copy of the
relevant employment contract was submitted to FIFA.
3.
On 18 November 2005, A sent a complaint against B to FIFA demanding 80% of
the 5% as solidarity contribution, i.e. EUR 12,000, in connection with the transfer
of the player D.
4.
B asserted that the A’s calculation is false. Instead of 80%, B should receive 65%
only, i.e. EUR 9,750 as solidarity contribution. But, since it paid the entire transfer
compensation to the player’s former club, C, it would be the latter who is
responsible to pay it back the 65% + 35% of the 5% of the transfer compensation,
i.e. EUR 15,000. Furthermore, B outlined that once it received the aforementioned
amount, it would be willing to pay the amount of EUR 9,750 to A.
5.
On 26 June 2006, FIFA provided C with a copy of the entire file and informed A, B
and C 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 relevant
proportion(s) of the 5% solidarity contribution to the club(s) involved in the
player’s training in strict application of the relevant provisions of the Regulations
for the Status and Transfer of Players. 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 to the player’s new club.
6.
In the following, the C maintained that the transfer compensation was agreed net
between the parties concerned, i.e. without any further deduction of whatsoever
claim. Therefore, and in accordance with the FIFA Regulations it would be B, as
new club of the player, who is responsible to pay the presently claimed solidarity
contribution.
7.
A adhered to its claim. In addition, it claimed default interest of 5% per annum.
8.
B did not present any further statement.
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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 18 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.
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 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 July 2005. Equally the Chamber took note that the claim was
lodged at FIFA on 18 November 2005. In view of the aforementioned, the
Chamber concluded that the current FIFA Regulations for the Status and Transfer
of Players (edition 2005, hereafter: 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 the art. 21 and
annex 5 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 sporting seasons of his 12th and 23rd
birthdays.
6.
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 January
1989 of the sporting season 1988/89, i.e. the sporting season of the player’s 12th
birthday, until March 1997 of sporting season 1996/97, i.e. the sporting season of
the player’s 20th birthday.
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7.
In continuation, the Chamber duly noted that, on the one hand, B (the player’s
new club) asserts having paid the entire amount of EUR 300,000, agreed upon as
transfer compensation, to C (the player’s previous club) and that therefore the
latter would be responsible to pay the relevant solidarity contribution to A. In
other words, B omitted to deduct 5% of the relevant transfer compensation
relating to the solidarity mechanism.
8.
Furthermore, the Chamber observed that in view of the aforementioned, B
maintained that once C pays it back the 65% + 35% of the 5% of the transfer
compensation, it is willing to pay the amount of EUR 9,750 to A.
9.
Subsequently, the Chamber took note that, on the other hand, the C maintained
that the transfer compensation was agreed net between the parties concerned,
i.e. without any further deduction of whatsoever claim. Therefore, and in
accordance with the FIFA Regulations it would be B, as new club of the player,
who is responsible to pay the presently claimed solidarity contribution.
10.
On account of the above, 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. 21 and annex 5 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.
As a result and in consideration of the above-stated jurisprudence, the Dispute
Resolution Chamber decided to reject the allegations of C.
12.
In addition to the aforementioned, the Chamber stated that it also has to reject
the position of C 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 (cf. art. 12 par. 3 of the FIFA Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber).
This is, since C did not provide any documentary evidence regarding its allegations
according to which the parties would have contractually excluded the obligation
of C to pay solidarity contribution for the transfer of the player concerned in
accordance with the Regulations.
13.
The Chamber then referred to art. 1 of annex 5 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 football association of the country X the period to be taken into consideration
(period of registration of the player with the club A) went from January 1989 until
March 1997, during the sporting seasons of the player’s 12th to 20th birthdays. In
this respect, the Chamber concluded that the period of effective training to be
taken into account corresponds to seven entire sporting seasons and 15 months.
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15.
Therefore, the Chamber established that, in accordance with the breakdown
provided for in art. 1 of annex 5 of the Regulations, A is entitled to receive 64.58%
of the 5% of the compensation paid in relation to the transfer of the player D
from C to B.
16.
The Chamber noted that according to the transfer contract remitted to the file the
player D was transferred for the amount of EUR 300,000.
17.
Based on all of the above, the Dispute Resolution Chamber decided that B must
pay to A 64.58% of the 5% of the transfer compensation paid in relation to the
transfer of the player D, i.e. EUR 9,687 and that C must reimburse the amount of
EUR 9,687 to B.
18.
Finally, the Chamber referred to art. 2 par. 1 of annex 5 of the Regulations
according to which the payment of solidarity contribution is due no later than 30
days after the player’s registration. Consequently, the Dispute Resolution Chamber
decided to award the Claimant’s claim for default interest of 5% per annum as of
mid August 2005.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of A is partially accepted.
2.
B has to pay the amount of EUR 9,687 plus 5% default interest as from 15 August
2005 to A within 30 days as from the date of notification of this decision.
3.
If the aforementioned sum is not paid within the aforementioned deadline the
present matter shall be submitted to FIFA’s Disciplinary Committee, so that the
necessary disciplinary sanctions may be imposed.
4.
A is directed to inform 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.
5.
C has to reimburse the amount of EUR 9,687 to B within 30 days of notification
of the present decision.
6.
If the aforementioned sum is not paid within the aforementioned deadline an
interest rate of 5% per year will apply as of expiring 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.
7.
B is directed to inform C 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.
Any further claims presented by A are rejected.
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9.
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
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