Solidarity Contribution
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 22 June 2007,
in the following composition:
Mr Slim Aloulou (Tunisia), Chairman
Mr Philippe Diallo (France), member
Mr Essa M. Saleh al Housani (United Arab Emirates), member
Mr Philippe Piat (France), member
Mr Joaquim Evangelista (Portugal), member
on a matter between
the club, X, XX,
Represented by Mr A, attorney-at-law,
and
the club, Y, YY,
and
the club, Z, XX,
Represented by Mr B, attorney-at-law,
as Intervening party,
regarding solidarity contribution related to the transfer of the
player C.
I.
Facts of the case
1.
The player C, XX, (hereinafter: the player) was born on 17 December 1977.
2.
In April 2006, the Football Association of XX issued a player passport in accordance with
which the player was registered for X as an amateur from 15 August 1993 to 9 January
2000 and as a professional from 10 January 2000 to 6 September 2000.
3.
In July 2006, the Football Association of XX issued a player passport according to which
the player was registered as an amateur with the club, D, XX, from 15 August 1995 to 31
December 1999 and with X from 10 January 2000 to 6 September 2000 as a professional.
4.
The club, Y, YY, and the club, Z, XX, agreed on 28 August 2003 to transfer the player to Y
in return for compensation of EUR 2,000,000.
5.
The player was registered with Y on 1 September 2003.
6.
On 6 July 2005, X submitted a claim against Y in front of FIFA for solidarity contribution
amounting to EUR 65,090 relating to the period of time as from 15 August 1993 until 6
September 2000.
7.
In its statement of defence, Y claimed that Z had asserted in point 6 of the transfer
agreement concluded on 28 August 2003 that only Z had trained the player and thus that
no solidarity contribution was due under the terms of FIFA's regulations. The parties had
agreed that Y would not be required to retain 5% of the transfer compensation
negotiated; Z had declared it alone would be responsible for paying any claims. Contrary
to FIFA's regulations, which stipulate that a player’s new club should retain 5% of the
transfer compensation to pass on as a solidarity contribution to the relevant clubs, the
parties to the contract were free to decide which of the two clubs was to make the
solidarity payments. Y should therefore be excluded from the proceedings.
8.
On 19 August 2005, FIFA informed the parties concerned that, according to the Dispute
Resolution Chamber's jurisprudence, it was invariably the new club that was obliged to
pay the relevant percentage as a solidarity contribution to the clubs entitled to receive it,
and the former club would be required to refund the respective amounts if it had received
100% of the compensation payment from the new club.
9.
Z, which was asked by FIFA to present its position on this matter, claimed that the player
had been registered with X only from January 2000 to September 2000. Moreover, it
alleged that the payment due as a solidarity contribution for that period had been
transferred to X’s lawyers, namely Mr A and Mrs Q at the end of 2004. X was now
claiming a solidarity contribution from Y for a new period, namely from 1989 to 1997, but
____________________________________________________________________________________
Solidarity contribution relating to the player C
(X, XX / Y, YY)
Intervening party: Z, XX
2
the player had not even been registered with X during that period. It claimed that X had
submitted forged documents in this respect. As evidence, Z produced a letter drafted in L
and signed by the player, apparently claiming to have played for X only from January
2000 to September 2000. According to Z, X should be punished for deception.
10.
Y claimed that it had believed Z when it stated in summer 2003 that only the latter had
trained the player. As it had not been possible in summer 2003 to verify whether the
player had actually played only for Z until then, Y had included the provision in the
transfer agreement stating that it was incumbent on Z to pay for any claims arising from
the solidarity mechanism lodged by other clubs. Y had therefore transferred the entire
amount of the agreed transfer compensation to Z. Y pointed out that the non-existence
of any training clubs had constituted a condicio sine qua non for concluding the transfer
agreement with the relevant amount of compensation.
11.
Moreover, Y claimed that it was obvious from Z’s statement that X had received the
amount of … 12,000 as a solidarity contribution payment from Z in 2004 and that the
parties had declared that payment to be in full settlement of any claims.
12.
Furthermore, Y asserted that X had also originally claimed a solidarity contribution from it
for the period of January to September 2003.
13.
Moreover, Y underlined that Z had declared to be willing to pay any solidarity
contribution payments due.
14.
On 24 March 2006, X asserted that the amount it had claimed was to be paid exclusively
by the player's new club, Y, and that the former club, Z, shall refund the percentage
erroneously received by the new club.
15.
Furthermore, X stated that it did not need to comment on Z’s allegations, as X had not
been involved in the transfer agreement concluded between Y and Z and that it was suing
Y.
16.
X further confirms having received from Z a solidarity contribution payment to the
amount of … 12,000 in December 2004 for the period from January 2000 to September
2000. The claim submitted against Y was intended to compensate for the period between
August 1993 and December 1999.
17.
Furthermore, X denied having submitted forged documents, underlining that Z had not
produced any proof of that.
____________________________________________________________________________________
Solidarity contribution relating to the player C
(X, XX / Y, YY)
Intervening party: Z, XX
3
18.
Y submitted its final statement in a letter dated 12 June 2006. Y asserted that it did not
owe X anything, basically referring to the fact that X had already agreed upon the
solidarity payment with Z. In support of its position, Y submitted, inter alia, a document
signed by X’s legal representative on 20 November 2004, according to which it had agreed
with Z to receive a solidarity contribution payment of … 12,000 for the player’s transfer. It
also pointed out that X’s legal representative had originally claimed a solidarity amount
from Y for precisely that period as well as previously from Z, with which an amicable
agreement had been finally reached for payment of … 12,000. X had not claimed
compensation for the period August 1993 to December 1999 until later. In this
connection, according to Y, it was a well-known fact that the player had not started
playing football until the age of 22. Previously, he had allegedly worked in a supermarket.
The player passport issued by the Football Association of XX therefore constituted a false
statement.
19.
On account of the above, Y demanded that the Football Association of XX be directed to
confirm the relevant dates.
20.
Furthermore, Y maintained that any claim made by X would already have expired under
the statute of limitations as 18 months had elapsed between the date of the claim and the
player’s transfer to YY.
21.
The Football Association of XX submitted a new player passport in a letter dated 21 July
2006. According to this new player passport, the player had been registered for X only for
the period from 10 January 2000 to 6 September 2000 and with another club as amateur
from 15 August 1995 to 31 December 1999.
22.
On 22 August 2006, FIFA requested the parties concerned to submit any further comments
regarding the delivery of the new player passport from the Football Association of XX.
23.
Z replied by stating that it had already paid X … 12,000 as a solidarity contribution in
December 2004 and underlined that such amount corresponded to the solidarity
contribution owed for the period from January 2000 to September 2000.
24.
For its part, Y pointed out that X had admitted already having received … 12,000 from Z
for the period January to September 2000. Now, X was claiming payments for a period in
which the player had not been registered for X. It was in any case Z that was liable to pay
any solidarity contributions. Consequently, Y should be excluded from the proceedings.
25.
X did not make any further submissions but requested that the case be submitted to the
Dispute Resolution Chamber for a decision to be passed.
____________________________________________________________________________________
Solidarity contribution relating to the player C
(X, XX / Y, YY)
Intervening party: Z, XX
4
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 6 July 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 (hereinafter: the Procedural Rules) are
applicable to the matter at hand.
2.
With regard to the competence of the Chamber, art. 3 par. 1 of the above-mentioned
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 combination 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
X in connection with the transfer of the professional C during the course of a contract.
4.
Subsequently, the members of the Chamber analysed 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 Y on 1 September 2003. Equally, the Chamber
took note that the claim was lodged at FIFA on 6 July 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 to 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 to carefully study the facts outlined above as well as the documentation
on file and, in this respect, first of all, referred to the argument raised by Y related to the
alleged non-respect of the procedural time limit.
____________________________________________________________________________________
Solidarity contribution relating to the player C
(X, XX / Y, YY)
Intervening party: Z, XX
5
6.
In this respect, the Chamber referred to art. 25 par. 2 of the Regulations and art. 11 par. 1
of the Regulations governing the Application of the Regulations which clearly establish
that the player’s new club shall pay the amount due as solidarity contribution to the
training club(s) no later than 30 days after the player’s registration.
7.
In this context, the Chamber acknowledged that the player in question was registered for
Y on 1 September 2003.
8.
In continuation, the Chamber referred to art. 25 par. 5 of the Regulations for the Status
and Transfer of Players (edition 2005) relating to Procedural Guidelines, which, in
completion to the provisions foreseen in the Procedural Rules, establishes that no case
shall be heard if more than 2 years have elapsed from the event giving rise to the dispute.
In the present matter, so the Chamber, the event leading to the dispute must be seen in
the fact that Y did not pay any amount as solidarity contribution to X until 1 October
2003, i.e. within the aforementioned 30 days limit. The Chamber emphasised that X’s
complaint for its proportion of the solidarity contribution was brought to FIFA on 6 July
2005, thus, within the time limit set out in art. 25 par. 5 of the Regulations for the Status
and Transfer of Players (edition 2005) in combination with art. 11 par. 1 of the
Regulations governing the Application of the Regulations. Consequently, the Chamber
concluded that Y’s argument relating to prescription must be rejected.
9.
For the sake of good order only, the Chamber recalled that the 2001 edition of the
Regulations for the Status and Transfer of Players included the same two years time limit.
10.
The Dispute Resolution Chamber went on to evaluate whether or not X was entitled to
any proportion of the solidarity mechanism foreseen in art. 25 of the Regulations
related to the transfer of the player concerned from the club Z, XX, to the club, Y, YY.
11.
In this regard, the Chamber particularly referred to art. 10 of the Regulations
governing the Application of the Regulations, which provides the figures for the
distribution of the solidarity contribution, taking into consideration the time the
player was trained and educated by the club(s) between the ages of 12 and 23.
12.
As a consequence, the Chamber deemed it appropriate to establish the periods of
time the player in question, born on 17 December 1977, was registered with the
claiming club, X.
13.
Thereto, the Chamber acknowledged that the Football Association of XX issued two
different documents regarding the aforementioned periods of time, namely a first
one, issued in April 2006, according to which the player concerned was registered for
X from 15 August 1993 to 6 September 2000, as well as a second one, issued in July
____________________________________________________________________________________
Solidarity contribution relating to the player C
(X, XX / Y, YY)
Intervening party: Z, XX
6
2006, according to which he was registered for the said club as from 10 January 2000
to 6 September 2000 only.
14.
In this respect, the Chamber particularly noted that the second document issued by
the Football Association of XX in July 2006 according to which the player in question
was registered for X in the year 2000 for approximately 8 months only (i.e. from 10
January 2000 to 6 September 2000) was presented by the Football Association of XX
upon FIFA’s request to verify the dates mentioned in the document previously issued
in April 2006 due to the doubts that had arisen about its accuracy. Moreover, the
members of the Chamber noted that the parties involved, in particular X, did not
expressly contest the revised registration dates presented by the Football Association
of XX in July 2006. For these reasons, the Chamber unanimously decided that the
player passport issued by the Football Association of XX in July 2006 shall be taken
into consideration.
15.
As a consequence of the foregoing, the Chamber concurred that the relevant period
of time the player in question was registered with X is the one mentioned in the
Football Association of X’s confirmation put forward in July 2006 (i.e. 10 January 2000
to 6 September 2000).
16.
As a result, and considering that the player in question was born on 17 December
1977, the Chamber concluded that, in principle, X is entitled to receive solidarity
contribution payments for training and education dedicated to the player as from 10
January 2000 to 6 September 2000.
17.
In continuation, and turning its attention to the intervening party, Z, the Chamber
acknowledged that, according to Z, X already received monies in the amount of …
12,000 related to solidarity contribution in connection with the player’s transfer from
Z to Y based on an agreement reached in December 2004.
18.
To that regard, and upon careful review of all the documents presented by the parties
involved during the proceedings, the members of the Chamber noted that X
confirmed having received from Z the amount of … 12,000 as solidarity contribution
payment for the player’s training and education between 10 January 2000 and 6
September 2000.
19.
On account of the foregoing, the Chamber concluded that X decided in the year 2004
to obtain the relevant solidarity contribution via extrajudicial way from the player’s
previous club, Z. In particular, the Chamber noted that the parties involved agreed
upon a settlement amounting to … 12,000 for the relevant training time dedicated to
the player by X and that the relevant payment was already received by X. In other
words, the Chamber concurred that X, already having received the amount of money
____________________________________________________________________________________
Solidarity contribution relating to the player C
(X, XX / Y, YY)
Intervening party: Z, XX
7
for the relevant period of time that it trained the player in question by an amicable
solution, forfeited its right to enforce its claim for the same pecuniary claim by law in
front of FIFA.
20.
In light of all of the above, the Chamber decided that X’s complaint for solidarity
contribution lodged against Y must be rejected as it already agreed with Z to receive
the amount of money due as solidarity contribution for the relevant period of time by
an amicable solution, which was fulfilled, in 2004.
*****
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the club, X, XX, 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:
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 relating to the player C
(X, XX / Y, YY)
Intervening party: Z, XX
8