Solidarity Contribution
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 18 June 2009,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Rinaldo Martorelli (Brazil), member
Mohamed Mecherara (Algeria), member
on a matter between the club
O,
as Claimant
and the club
K,
as Respondent
regarding the solidarity contribution related to
the transfer of the player T
I.
Facts of the case:
1.
The Football Association of S confirmed that the player T (hereinafter: the
Player), born on 13 March 1983, was registered with its affiliated club O
(hereinafter: the Claimant) from 8 September 1999 until 21 July 2004.
2.
The season in S runs from 1 August to 31 July of the following year.
3.
On 19 February 2008, the Claimant contacted FIFA claiming the payment of
the solidarity contribution for the season 2003/2004, which allegedly
amounts to 10% of the proportion of 5% of the compensation paid in
connection with the transfer of the player from the club A to the club K
(hereinafter: the Respondent), apparently on or around January 2007. The
Claimant alleged that the relevant compensation amounted to
approximately EUR 250,000. In this respect, the Claimant provided FIFA with
a website release, in which it is stated that the transfer fee paid in this
context amounted to EUR 250,000.
4.
As a consequence, the Claimant requested the amount of at least EUR 1’250
plus 5% interest. The Claimant also requested a copy of the transfer
agreement concluded between A and the Respondent.
5.
On 16 March 2009, the Respondent informed FIFA that the player was 23
years old when he signed the relevant employment contract with it.
Furthermore, the Respondent declared that it did not pay any transfer
compensation to A for the transfer of the player, since the player was
allegedly a “free agent”.
6.
On the same day, the Claimant adhered to its original claim. It also
demanded a copy of the transfer agreement concluded between A and the
Respondent and/or the employment contract signed between the
Respondent and the player in order to be aware of the financial terms of the
transfer.
7.
On 14 April 2009, the Respondent adhered to its previous position. It added
that no transfer agreement had been concluded between it and A and that
the employment contract concluded with the player does not show any
information about the transfer in question. Therefore, the Respondent
rejected the Claimant’s claim as well as the request related to the submission
of the transfer agreement and the relevant employment contract. Moreover,
the Respondent emphasized that the Claimant club had not provided any
evidence whatsoever that any transfer compensation had been paid at all.
8.
On 30 April 2009, the Claimant stated once more that the club is entitled to
request the distribution of the solidarity contribution. Furthermore, the
Claimant underlined its disappointment regarding the allegation that the
Respondent was unwilling to respond to its request. Furthermore, the
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Claimant mentioned another case, where the Respondent also had allegedly
been unwilling to cooperate.
9.
In a correspondence dated 20 May 2009, the Respondent adhered once more
to its previous position. Furthermore, the Respondent declares that it is not
obliged to forward the employment agreement.
10.
Although FIFA asked the Football Union of U several times, on 4 March 2008,
20 February, 6 and 27 April 2009, for the date on which the player was
registered with the Respondent, FIFA did not receive any response at all.
II.
Considerations of the Dispute Resolution Chamber:
1.
First of all, the Dispute Resolution Chamber analyzed whether it was competent
to deal with the case at hand. In this respect, it took note that the present
matter was submitted to FIFA on 19 February 2008. Consequently, the 2005
edition of the Rules Governing the Procedures of the Players’ Status Committee
and the Dispute Resolution Chamber (hereinafter: the Procedural Rules) are
applicable to the matter at hand (cf. art. 18 par. 2 and 3 of the Procedural Rules
and art. 21 par. 2 and 3 of the Rules Governing the Procedures of the Players’
Status Committee and the Dispute Resolution Chamber edition 2008).
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the
Procedural Rules and confirmed that in accordance with art. 24 par. 1 in
combination with art. 22 lit. (d) of the Regulations on the Status and Transfer of
Players (edition 2008) the Dispute Resolution Chamber is competent to decide on
the present litigation with an international dimension concerning the
distribution of the solidarity contribution claimed by the club O in connection
with the transfer of the professional player T to the club K during the course of a
contract.
3.
Furthermore, and taking into consideration that the player was apparently
registered for his new club on or around January 2007, the Chamber analyzed
which regulations should be applicable as to the substance of the matter. In this
respect, it confirmed that in accordance with art. 26 par. 1 and 2 of the
Regulations on the Status and Transfer of Players (edition 2008), and considering
that the present claim was lodged on 19 February 2008, the 2005 edition of the
regulations (hereinafter: the Regulations) is applicable to the matter at hand as
to the substance.
4.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. The
members of the Chamber started by acknowledging that the parties have
contradictory positions as to whether the Respondent had paid any transfer
compensation at all to the player’s former club A for the transfer of the player.
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5.
In particular, the Chamber took due note that, on the one hand, the Claimant
stated that the player was transferred to the Respondent for the alleged amount
of EUR 250,000. On the other hand, the Chamber took due note that the
Respondent vehemently contested the affirmation of the Claimant and affirmed
that by the time it signed an employment contract with the player, the player’s
employment contract with A had expired and thus it had not paid any transfer
compensation at all to A.
6.
In continuation, the Chamber deemed it important to emphasized that, as a
general rule, as established in the art. 21 of the Regulations in connection with
Annex 5 of the Regulations, if a professional moves during the course of a
contract, 5% of any compensation, not including training compensation, paid to
his former club, shall be deducted from the total amount of this compensation
and distributed by the new club as solidarity contribution 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 club(s) between the sporting
seasons of his 12th and 23rd birthdays.
7.
Thus, considering the above the Chamber concluded that one of the essential
prerequisites in order to establish as to whether a club involved in the training
and education of a player is entitled to receive any solidarity contribution is that
at least a compensation, not including training compensation, had been paid for
the transfer of a player to his former club, otherwise the calculation becomes
unfeasible.
8.
In this context, the Chamber considered that the Claimant did not provide any
substantial documentary evidence proving that any transfer compensation had
been paid to A, but merely stated an amount. In particular, the Chamber
acknowledged that the Claimant did not provide any substantial documentary
evidence although the Respondent vehemently contested that any compensation
at all had been paid for the transfer of player since he was no longer
contractually bound to his former club.
9.
In continuation, the Chamber recalled that according to the legal principle of the
burden of proof, any party claiming a right on the basis of an alleged fact shall
carry the burden of proof (cf. art. 12 par. 3 of the Procedural Rules).
10.
In view of the above, the Chamber unanimously concluded that any club
claiming its right to receive its alleged proportion of the solidarity contribution,
from a club that contests that any transfer compensation had been paid, shall
carry the burden of proof that such a transfer compensation had indeed been
paid.
11.
As a result, and based on the documents at its disposal the Chamber decided to
reject the claim of the Claimant against the Respondent for solidarity
contribution in connection with the transfer of the player T.
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III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant O is rejected.
*****
Note relating to the motivated decision (legal remedy):
According to art. 63 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:
__________________________________
Markus Kattner
Deputy Secretary General
Enclosed: CAS directives
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