Solidarity Contribution
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 22 July 2010,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Theo van Seggelen (Netherlands), member
Jon Newman (USA), member
Ivan Gazidis (England), member
Guillermo Saltos Guale (Ecuador), member
on a matter between the club,
A,
as Claimant
and the club,
S,
as Respondent
regarding the solidarity contribution related to
the transfer of the player Z
I.
Facts of the case
1.
The Football Association X (FAX) confirmed that the player, Z (hereinafter: the player),
born on 18 March 1987, was registered with its affiliated club, Club A (hereinafter: the
Claimant), as an amateur player from 7 January 1998 until 24 June 2004, and then as a
professional from 25 June 2004 until 14 August 2007.
2.
The sporting season in the country X runs as follows: a) for amateurs (under 20 years of
age) from January until December of the relevant year, and b) for amateurs (more than
20 years of age) as well as for professionals from 1 July until 30 June of the following
year.
3.
According to a written statement from the Football Federation I (FFI), the player was
registered with its affiliated club, S (hereinafter: the Respondent), on 7 August 2008.
4.
On 22 October 2008, the Claimant contacted FIFA claiming its proportion of the
solidarity contribution in connection with the transfer of the player from the club, L
(hereinafter: the involved club), to the Respondent for the alleged amount of
USD 3,800,000.
5.
In particular, the Claimant requested 3.25% of the total transfer compensation paid by
the Respondent to the involved club as solidarity contribution.
6.
On 2 September 2009, the Claimant amended its claim. It mentioned in particular that
the player had first been loaned to the Respondent at the beginning of the year 2008,
and subsequently transferred definitively in the middle of 2008. However, the Claimant
stated that it neither knew the loan fee, nor the transfer amount for the definitive
transfer.
7.
On 7 October 2009, the Respondent informed FIFA that it did not conclude any transfer
contract with the involved club and that it did therefore not pay any transfer
compensation. According to the Respondent, on 27 April 2009, the player exercised a
termination clause stipulated in the employment contract signed with the involved club,
and afterwards, on 4 June 2009, he signed a contract with the Respondent.
8.
On 11 November 2009, the Claimant argued that the player was first loaned to the
Respondent. However, the Claimant underlined that the Respondent remained silent on
that issue without contesting the Claimant’s arguments. The Claimant alleged that the
official website of the Respondent and the media confirmed that the Respondent made
use of the option for the definitive transfer of the player. Furthermore, the Claimant
was of the opinion that the Respondent did not prove the facts it had alleged, inter
alia, that it did not provide FIFA with the pertinent contracts, i.e. the loan agreement as
well as the employment contract signed between the player and the involved club.
Moreover, the Claimant pointed out that the sum paid for this transfer is of about
EUR 20,000,000. Furthermore, the Claimant mentioned that it has to be clarified who
paid this sum to the involved club. For these reasons, the Claimant affirmed that the
Respondent only wished to avoid paying solidarity contribution and contravene the
Regulations on the Status and Transfer of Players.
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9.
On 19 February 2010, the Claimant provided FIFA with the “Football Player
International Transfer Contract” signed between the Claimant and the involved club on
23 June 2007. Furthermore, it provided FIFA with the “Football Player’s Contract”
(hereinafter: the employment contract) signed between the player and the involved
club on 23 June 2007 for the duration of four years. According to this employment
contract, the player should receive a total amount of EUR 12,000,000 as remuneration,
in particular monthly salaries of EUR 100,000 as well as several bonuses. “In case of
breach of contract, the player has to pay to [the involved club] the amount of
EUR 20,000,000” (cf. art. 10 point 3 of the employment contract).
10.
On 11 March 2010, the Respondent repeated that it neither concluded any transfer
contract with the involved club, nor paid any transfer amount. Furthermore, the
Respondent provided FIFA with the termination letter from the player dated 27 April
2009, by means of which the player declared that he wishes to terminate his contract
with the involved club dated 23 June 2007 immediately and therefore agreed to pay the
compensation stipulated in art. 10 point 3 of the pertinent employment contract.
11.
On 14 April 2010, the Claimant provided FIFA with the balance sheet of the
Respondent, dated 30 June 2009. According to this balance sheet, the Respondent paid
the amount of EUR 2,400,000 for the loan of the player and of EUR 20,200,000 for his
definitive transfer.
12.
In this respect, the Claimant requested 3.56% of the amounts paid, i.e. the requested
amount of EUR 85,440, plus an interest rate of 5% per year as from 30 July 2008, based
on the loan, as well as the amount of EUR 719,120, plus an interest rate of 5% per year
as from 27 May 2009, based on the definitive transfer.
13.
On 27 May 2010, the Respondent provided FIFA with its last position. The Respondent
repeated its position of 11 March 2010 and added the following: “It is irrelevant that
[the Respondent] then carried out the payment of the termination clause due by the
player, because this comes from a direct agreement between [the Respondent] and the
player and it is not a “transfer agreement” between [the Respondent] and [involved
club]. Actually, the L club is alleging that [the Respondent] induced the player to breach
his contract and a dispute has been filed with FIFA on this subject.”
14.
Furthermore, the Respondent stated that the amount of EUR 20,200,000 mentioned in
the balance sheet of the Respondent does not represent the transfer compensation, but
the costs the Respondent had to pay for registering the player. Furthermore, the
Respondent agreed that the player was loaned from the involved club to it, and
therefore it paid EUR 2,400,000 to the involved club. Based on this amount, the
Claimant should receive EUR 73,442.77 and not EUR 85,440 as requested by the
Claimant. As a consequence, the Respondent had already paid EUR 73,442.77 to the
Claimant in two instalments: EUR 36,721.39 on 24 March 2009 and EUR 36,721.39 on
22 March 2010.
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II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (DRC) analysed whether it was competent
to deal with the matter at stake. In this respect, it referred to art. 21 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 22 October 2008, as
a consequence, the Chamber concluded that the revised Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(edition 2008; hereinafter: “the Procedural Rules”) are applicable on 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 Regulations on the Status and Transfer of Players. In
accordance with art. 1 par. 1 of these Regulations, which describes its scope, in
connection with articles 24 par. 1 and 22 d) of the said Regulations, the Dispute
Resolution Chamber shall adjudicate on disputes between two clubs in connection with
an international transfer of a professional player 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 in
connection with the international transfer of the football player, Z (hereinafter: the
player).
4.
Furthermore, and taking into consideration that the player was registered for his new
club, S (hereinafter: the Respondent), based on a loan on 7 August 2008, the Chamber
analysed which edition of the Regulations on the Status and Transfer of Players 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, and also considering that the present claim was lodged in front of FIFA on
22 October 2008, the 2008 edition of the said Regulations (hereinafter: the Regulations)
is applicable as to the substance of the matter.
5.
In continuation, and entering into the substance of the matter, the members of the
Chamber started by acknowledging that the club, Club A (hereinafter: the Claimant), is
requesting the payment of EUR 85,440 as solidarity contribution, based on the loan of
the professional player from the involved club to the Respondent.
6.
Moreover, the Chamber duly noted that according to the Football Federation I (FFI), the
player was loaned on 7 August 2008 from the involved club.
7.
In continuation, the members of the Chamber emphasised that, as established in art. 10
par. 1 and art. 21 of the Regulations in connection with Annexe 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 to be 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
clubs between the sporting seasons of his 12th and 23rd birthday.
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8.
In this respect, the Chamber took due note that the Football Association X (FAX)
confirmed that the player, born on 18 March 1987, was registered with the Claimant as
an amateur from 7 January 1998 until 24 June 2004, and then as a professional from
25 June 2004 until 14 August 2007.
9.
In this respect, the Chamber took into account that, as alleged by the Claimant and
confirmed by the Respondent, the player was transferred for the amount of
EUR 2,400,000.
10.
Moreover, the Chamber considered that the Claimant requested the payment of the
amount of EUR 85,440 as solidarity contribution, corresponding to 3.56% of the total
transfer compensation paid by the Respondent to the involved club, i.e. EUR 2,400,000,
plus 5% interest per year as from 30 July 2008.
11.
In this respect, the members of the Chamber noted that during the procedures of the
present matter the Respondent had paid EUR 73,442.77 to the Claimant, in order to
settle the matter at stake in connection with the solidarity contribution for the player.
12.
In continuation, in particular with reference to points II./7., 8., 9. and 11. (cf. supra), the
Chamber decided that the Claimant is entitled to receive EUR 11,553 as solidarity
contribution from the transfer compensation paid for the loan of the said player, as
well as 5% interest per year on said amount as from 7 September 2008 until the
effective date of payment. Moreover, it also decided that any further claims lodged by
the Claimant regarding the loan of the player are rejected.
13.
Furthermore, and with regard to the permanent transfer of the player to the
Respondent, the Chamber took into consideration that the information of the Football
Federation I regarding the date of the permanent registration of the player was
unclear.
14.
Therefore, taking into account that the sporting season in country I runs from 1 July
until 30 June of the following year, and that the player signed an employment contract
with the Respondent on 4 June 2009, which is undisputed by the Claimant, the Chamber
concluded that the player was permanently registered at the start of the
season 2009/2010, i.e. on 1 July 2009.
15.
In this respect, the DRC confirmed that in accordance with art. 26 par. 1 and 2 of the
Regulations, and also considering that the present claim was lodged in front of FIFA on
22 October 2008, the 2008 edition of the said Regulations is also applicable as to the
substance of the matter regarding the definitive transfer of the player.
16.
Additionally, and entering into the substance of the matter, the members of the
Chamber started by acknowledging that the Claimant is requesting the payment of
EUR 719,120 as solidarity contribution based on the definitive transfer of the
professional player from the involved club to the Respondent.
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17.
In continuation, the members of the Chamber emphasised that, as established in art. 21
of the Regulations in connection with Annexe 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 to be 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 clubs between the sporting
seasons of his 12th and 23rd birthday.
18.
In this respect, the Chamber took due note that the Football Association X confirmed
that the player was registered with the Claimant as an amateur player from 7 January
1998 until 24 June 2004, and then as a professional from 25 June 2004 until 14 August
2007.
19.
Furthermore, the Chamber noted that the player and the involved club signed the
“Football Player’s Contract” (hereinafter: the employment contract) on 23 June 2007,
valid from the date of signature until 23 June 2011. Article 10 point 3 of the
employment contract stated the following: “In case of breach of contract, the player
has to pay to [the involved club] the amount of EUR 20,000,000”. This employment
contract provided for a total amount of EUR 12,000,000 as remuneration, in particular
monthly salaries of EUR 100,000 as well as several bonuses.
20.
The DRC also observed that on 27 April 2009, the player sent a letter to the involved
club by means of which the player declared that he wished to terminate his contract
with the involved club immediately, and therefore agreed to pay the compensation
stipulated in article 10 point 3 of the pertinent employment contract.
21.
Moreover, the Chamber took into account that according to the balance sheet of the
Respondent, it paid EUR 20,200,000 for the transfer of the player.
22.
Thus, in view of the above, the DRC concluded that it had been clearly established, and
was not contested by the parties to this dispute, that the employment contract between
the player and the involved club had been terminated on the above mentioned date,
i.e. on 27 April 2009 (cf. point II./20. supra), as a result of the payment of the sum of
EUR 20,000,000 to the involved club.
23.
The Chamber further noted that the parties did not dispute that the player in question
signed an employment contract with the Respondent on 4 June 2009.
24.
Furthermore, the Chamber observed that the Claimant considered the payment of the
amount of EUR 20,200,000 paid by the Respondent (cf. point II./21. supra) to constitute
a transfer of the player from the involved club to the Respondent, thus activating
art. 21 in connection with Annexe 5 of the Regulations.
25.
Moreover, the Chamber noted that according to the Respondent, the amount of
EUR 20,200,000 mentioned in its balance sheet does not represent the transfer
compensation, but the costs the Respondent had to pay for registering the player.
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26.
Subsequently, the DRC took into account that the Respondent added the following: “It
is irrelevant that [the Respondent] then carried out the payment of the termination
clause due by the player, because this comes from a direct agreement between [the
Respondent] and the player and it is not a “transfer agreement” between [the
Respondent] and [the involved club].” In view of the above, the Respondent denied
that art. 21 and Annexe 5 of the Regulations are applicable to the matter at hand.
27.
Consequently, and in view of the opposing positions of the parties, the Chamber
deemed that the question at the centre of the dispute was whether the payment in
question of the sum of EUR 20,000,000 or even EUR 20,200,000 in the above
circumstances was equivalent to the transfer of the player between two clubs, which
would thus to be subsumed under art. 21 and Annexe 5 of the Regulations.
28.
The Chamber firstly analysed article 10 point 3 of the employment contract between
the player and the involved club. In this regard, the deciding authority underlined that
this release clause should not be interpreted literally, i.e. by adhering only to the letter
of the clause in question, but in accordance with the theory of the parties’ recognisable
intent, i.e. by ascertaining the meaning that the parties could reasonably have wished
to give to the contractual clause in question. The DRC highlighted the fact that
according to this interpretation, it appears likely according to the principle of good
faith and in view of the considerable sum of EUR 20,000,000 set forth in the clause in
question, that the involved club and the player were providing for the possibility of a
third club indirectly intervening in the payment of the release clause on a subsidiary
basis with a view to contracting the services of the player.
29.
On the one hand, the DRC then noted that on 4 June 2009, the player had signed an
employment contract with the Respondent, this is, after the termination of the contract
with the involved club, i.e. on 27 April 2009, and that said fact had not been disputed
by either of the parties. On the other hand, the Chamber also observed that according
to the Respondent, it carried out the payment of the release clause due by the player.
30.
In this regard, the Chamber compared the content of article 10 point 3 of the
employment contract signed between the player and the involved club as well as the
facts of this case to a transfer agreement signed by two clubs for the transfer of a
player. The DRC underlined that a typical transfer agreement signed by two clubs and a
player generally stipulates a sum of money freely agreed between the player’s former
and new clubs in exchange for the early termination of the contractual relationship
between the player and his former club, which is thus tantamount to the early
termination of the employment contract in question, by means of the payment of a sum
commonly described as the “transfer compensation”. Furthermore, the Chamber
underlined that the professional services that a player renders to a club is a factor that
is liable to be assessed by the employer from a financial standpoint. Consequently,
when a club shows an interest in the professional services of a player who has a valid
employment contract with another club, the interested club must reach an agreement
with the old club with regard to the value of this transfer, with a view of compensating
the old club for agreeing to dispense with the professional services of the player in
question before the expiry of the employment contract.
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31.
In view of the above paragraph, the Chamber deemed that the two situations, i.e. the
concrete one at hand in the present procedure concerning the payment of
EUR 20,000,000 by the Respondent in accordance with article 10 point 3 of the
employment contract signed between the player and the involved club, and the
payment of a sum by one club to another in connection with a typical transfer
agreement, are similar and have the same characteristics, in that they both constitute a
transfer agreed between two clubs and a player for a specific amount for the early
termination of a former labour relationship, except for the fact that in this dispute, at
first the value of the transfer was agreed bilaterally, i.e. without the intervention of the
interested club, the Respondent. Yet, the latter gave its agreement to the move of the
player, thus to his transfer, at a later stage, namely when it agreed to sign the player
and to pay the amount in accordance with the pertinent clause of the previous
employment contract.
32.
With regard to the similarities in the above two situations, the DRC highlighted that in
both cases a sum was paid to the player's former club, in order to enable him to
terminate the employment contract before the contractually stipulated expiry date with
a view of being transferred to a new club. The Chamber also insisted on the fact that
the only difference resided in the fact that in the present case, the “transfer
compensation” was set bilaterally and the Respondent was not consulted at first,
although they nevertheless subsequently freely accepted it, and paid the relevant
amount of EUR 20,000,000 to the involved club. The Chamber thus concluded that the
facts of the present case constitute a transfer agreed to by the involved club, in the
terms it had offered at the time of concluding the employment contract with the
player.
33.
Moreover, the Chamber noted that according to the Claimant, the player had been
transferred for the amount of EUR 20,200,000. Equally, the Chamber took into account
that, on the other hand, the Respondent admitted that it carried out the outstanding
debt of the player, this is EUR 20,000,000, and that the amount of EUR 20,200,000 does
not represent the transfer compensation, but the costs the Respondent had to pay for
registering the player.
34.
Then, the DRC 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).
35.
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 the alleged amount of a transfer compensation, shall carry the burden of proof
that such a transfer compensation was indeed higher as stated by the Respondent.
36.
In this respect, the DRC noted that the Claimant provided FIFA with a copy of the
balance sheet published on the Respondent’s website, the content of which has never
been contested by the Respondent.
37.
In continuation, the Chamber took note that in said balance sheet, the amount of
EUR 20,200,000 is called “valor contractual” and “adquisición”. Said terms indicate that
the amount of EUR 20,200,000 represents a transfer compensation paid by the
Respondent to the involved club.
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38.
Furthermore, the amount of EUR 20,200,000 is mentioned within the context of other
transfer compensations, which were paid by the Respondent for the registration of new
players.
39.
As a consequence, the DRC concluded that according to the wording of said balance
sheet, and the context in which the amount of EUR 20,000,000 was mentioned, said
amount has to be interpreted as the sum the Respondent paid to the involved club for
the transfer of the player.
40.
Consequently, and in view of the above paragraphs, the DRC decided that in the
present case, the activation of the relevant contractual clause by the player (cf.
article 10 point 3 of the employment contract) concluded between the involved club
and the player, as well as the wording of the Respondent’s balance sheet, bearing in
mind that the sum in question, EUR 20,200,000, was voluntarily borne by the
Respondent, has to be considered a transfer agreed between the Respondent and the
involved club in the sense of art. 21 in connection with Annexe 5 of the Regulations.
The DRC underlined that the fact that said compensation for termination was provided
for in the relevant employment contract, as mentioned in art. 17 of the Regulations,
does not alter the interpretation of the facts in the present case.
41.
The Chamber thus took the view that the specific circumstances of this matter are
tantamount to a transfer agreed between the involved club, the player and the
Respondent, and that, therefore, art. 21 in connection with Annexe 5 of the
Regulations were applicable in this case considering its present specificities.
42.
Subsidiary, the Chamber held that if the present case was not considered as a transfer in
which art. 21 of the Regulations and Annexe 5 of the Regulations were applicable, this
would lead to interpret the relevant articles contrary to its sense and thus contrary to
the principle of good faith. In such a case, said articles would be interpreted as contrary
to the loyalty that must be observed in legal relations. Not applying art. 21 and
Annexe 5 of the Regulations in the present matter would be contrary to the meaning
that should be objectively given to these articles. The Chamber further held that this
opinion was all the more justified in view of the profit of EUR 20,200,000 made by the
involved club following the departure of the player to the Respondent.
43.
Consequently, and having established that art. 21 and Annexe 5 of the Regulations are
applicable in this case, the Chamber referred to the Claimant’s specific claims.
44.
In continuation, the Chamber considered that the Claimant requested the payment of
the amount of EUR 719,120 as solidarity contribution, corresponding to 3.56% of the
total amount paid by the Respondent to the involved club, i.e. EUR 20,200,000, plus 5%
interest per year as from 27 May 2009.
45.
Additionally, in particular with reference to points II./17., 18. and 40. (cf. supra), the
Chamber decided that the Claimant is entitled to receive EUR 715,383 as solidarity
contribution from the transfer compensation paid for the transfer of the player, with
5% interest per year on the said amount as from 1 August 2009 until the effective date
of payment. Any further claims lodged by the Claimant regarding the definitive transfer
of the player are rejected.
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46.
In continuation, the Chamber referred to art. 18 par. 1 of the Procedural Rules,
according to which in the proceedings before the Dispute Resolution Chamber relating
to disputes regarding solidarity mechanism costs in the maximum amount of CHF 25,000
are levied. The costs are to be borne in consideration of the parties’ degree of success in
the proceedings.
47.
In this respect, the Chamber reiterated that the claim of the Claimant is partially
accepted. Therefore, the Respondent has to bear the costs of the current proceedings in
front of FIFA.
48.
According to Annexe A of the Procedural Rules, the costs of the proceedings are to be
levied on the basis of the amount in dispute.
49.
The amount in dispute to be taken into consideration in the present proceedings
amounts to EUR 804,560 related to the claim of the Claimant. Therefore, the Chamber
concluded that the maximum amount of costs of the proceedings corresponds to
CHF 25,000 (cf. table in Annexe A).
50.
Considering that the case at hand allowed to be dealt with following a reasonable
procedure, that the present case showed particular factual difficulty and that it involved
specific legal complexity, the Chamber determined the final amount of costs of the
current proceedings to the amount of CHF 20,000.
51.
In view of all the above, and bearing in mind that the claim of the Claimant was
partially accepted, the Chamber concluded that the amount of CHF 20,000 has to be
paid by the Respondent to cover the costs of the present proceedings. Thereof, the
amount of CHF 20,000 has to be paid by the Respondent to FIFA.
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III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, A, is partially accepted.
2.
The Respondent, S, has to pay to the Claimant, A, the amount of EUR 726,936, within
30 days as from the date of notification of this decision.
3.
Within the same time limit S has to pay to A default interest of 5% per annum on the
following partial amounts until the effective date of payment, as follows:
-
on EUR 11,553 as from 7 September 2008
on EUR 715,383 as from 1 August 2009.
4.
If the aforementioned sum is not paid within the aforementioned deadline, the present
matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for
consideration and a formal decision.
5.
The costs of the proceeding in the amount of CHF 20,000 are to be paid by the
Respondent, S, within 30 days of notification of the present decision to FIFA to the
following bank account with reference to case no.
UBS Zurich
Account number 366.677.01U (FIFA Players’ Status)
Clearing number 230
IBAN: CH27 0023 0230 3666 7701U
SWIFT: UBSWCHZH80A
6.
Any further claims lodged by the Claimant, A are rejected.
7.
The Claimant, A, is directed to inform the Respondent, L, immediately and directly of
the account number to which the remittance is to be made and to notify the Dispute
Resolution Chamber of every payment received.
*****
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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
Encl.
CAS directives
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