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 E. Gazidis (England), member
Guillermo Saltos Guale (Ecuador), member
on the claim presented by the club
FC R,
as Claimant
against the club
W FC,
as Respondent
regarding a dispute for solidarity contribution in connection with
the transfer of the player D
I.
Facts of the case
1.
According to a confirmation of The S Football Association (SFF), the player D
(hereinafter: the player), born on 16 April 1984, was registered for its member
club, W FC (hereinafter: the Claimant), from 29 May 1998 until 2 July 2000 as an
amateur player, and from 12 July 2000 until 30 June 2004 as a professional player.
2.
In country S, the sporting season lasts as from 1 August until 31 July of the
following year.
3.
The W Football Association (WFA) confirmed that the player was registered with
its affiliated club, W FC (hereinafter: the Respondent), on 24 July 2007, after
“International Clearance” had been granted by The Football Association
(hereinafter: The FA) on that date.
4.
By means of a fax dated 10 July 2009, the Claimant submitted a claim to FIFA,
requesting solidarity contribution due to it from the Respondent, in respect of the
transfer of the player from the club, H FC (hereinafter: H FC), to the club, W FC
(hereinafter: the Respondent) on 10 July 2007 for the alleged sum of 200,000.
5.
In particular, the Claimant alleged that the solidarity contribution was due to it as
a result of this international transfer between two clubs belonging to two
Associations, i.e. The FA and The W Football Association, and had to be calculated
as follows:
Alleged Total Compensation paid by the Respondent to H FC = 200,000.
Season of 14th birthday = (0.25% x 200,000) x 33/365 = 45.21
Season of 15th birthday = 0.25% x 200,000 = 500
Season of 16th birthday = 0.5% x 200,000 = 1,000
Season of 17th birthday = 0.5% x 200,000 = 1,000
Season of 18th birthday = 0.5% x 200,000 = 1,000
Season of 19th birthday = 0.5% x 200,000 = 1,000
Season of 20th birthday = 0.5% x 200,000 = 1,000
6.
Therefore, the Claimant requested the payment of a sum of 5,545.21 together
with interest calculated on this outstanding sum at the appropriate rate.
7.
By means of another fax dated 5 August 2009, the Claimant contacted FIFA again,
and updated its claim reducing the amount requested.
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8.
In particular, the Claimant alleged that the solidarity contribution was due to it as
a result of the aforementioned transfer and had to be calculated as follows:
Total Compensation paid by the Respondent to H FC = 200,000.
Season of 15th birthday = 0.25% x 200,000 = 500
Season of 16th birthday = 0.5% x 200,000 = 1,000
Season of 17th birthday = 0.5% x 200,000 = 1,000
Season of 18th birthday = 0.5% x 200,000 = 1,000
Season of 19th birthday = 0.5% x 200,000 = 1,000
Season of 20th birthday = 0.5% x 200,000 = 1,000
9.
Therefore, the Claimant requested the payment of a total sum of 5,500 together
with interest calculated on this outstanding sum at the appropriate rate.
10.
By means of a fax dated 13 November 2009, the Respondent, whilst not contesting
the facts exposed by the Claimant, rejected the claim for the following reasons:
11.
a.
Although the Respondent (along with the other clubs, X FC and Y FC) is (are)
regulated by The W Football Association, and that in terms of issues such as
players’ transfers and discipline, the Respondent is an affiliate of The W
Football Association, it plays in competitions which fall under the jurisdiction
of The Football Association (The FA).
b.
The Respondent came into being in 1912 and has participated in the Football
League since then; the Respondent has played in all 4 divisions of the
Football League (including a spell in the 1st Division [now the Premier
League] and is currently competing in the Championship League; it is
therefore “critical” that the Respondent is permitted by all governing bodies
concerned to compete fairly and on equal financial and competitive terms
with all other club in the Football League.
In this connection, the Respondent submitted that:
a.
The first point it made was that, as a participant club in the Football League,
it – like all other clubs competing in the Football League – received a circular
from The FA dated 19 January 2005 with an advice from them that solidarity
payments were not payable on domestic transfers in any circumstances.
b.
In reliance with that advice, the Respondent acted upon it as a participant in
the Football League. It has therefore entered into dealings on that basis and
acted in good faith and in reliance upon that advice from The FA.
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12.
c.
Any other just interpretation of the Regulations would have given it cause to
take the solidarity payment issue into account in negotiations for the
acquisition, or disposal, of players in such circumstances. It has not done so
and submitted that it would be unfair to it to do so after the event.
Solidarity was not raised by any governing body before or at the time of the
transfer in question.
d.
It believed that the Claimant’s attempt to distinguish this transfer from a
domestic transfer on the basis of an argument that the transfer at the basis
of the present dispute is “international” as opposed to “domestic” is flawed
and immaterial.
Finally, the Respondent concluded its response with the following arguments:
a.
The really wide and important issue there was the effect of any decision
which would make solidarity payments payable in the circumstances of clubs
who would be materially disadvantaged.
b.
The Respondent submitted that the true intention of the Regulations was
not to discriminate between clubs and in its submission interpreting the
Regulations to create such discrimination would be grossly unfair.
c.
Clubs that are affiliated to one National Association and participate in a
League that is affiliated to another National Association should be treated
equally with their respective fellow member clubs within the League in
which they participate. For example, if the player had been transferred from
H FC to the club, B FC (instead of to the Respondent) and had then been
transferred from B FC to another club, Z FC, no solidarity contribution would
have been payable on either transfer. The Respondent participates in the
same competitive league pyramid structure as B FC, and therefore must be
treated as B FC’s equal when it comes to triggering (or non-triggering) of a
solidarity payment. To interpret the Regulations otherwise would distort
competition between clubs competing against each other in the same
national league structure.
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d.
There are 92 clubs in the top 4 divisions of the Football League, 90 of them
are affiliated to The FA and only 2 (including the Respondent) affiliated to
the W Football Association. It would discriminate the 2 W Football
Association affiliated clubs if a transfer of a player by one of the 90 to
another of the 90 clubs (or between the 2 clubs affiliated to the W Football
Association) did not trigger a solidarity payment but the transfer by one of
the 90 (H FC) to one of the 2 clubs (the Respondent, in casu) were to trigger
a solidarity payment.
e.
The anomaly of a club affiliated to one National Association and
participating in a League affiliated to another National Association is not
unique (examples include D FC in the League of of country I and FC V
participating within the boundaries of the V Football Association). UEFA and
FIFA allow these clubs to participate in these Leagues for a variety of
reasons. Therefore, as these governing bodies have sanctioned these historic
anomalies, then all transfers between all the clubs in theses competitions
must be viewed as “non-solidarity transfers” to protect the integrity of the
competition.
13.
The Respondent therefore asked that the claim for a solidarity payment in respect
of this transfer is rejected.
14.
By means of a fax dated 3 February 2010, the Claimant re-iterated its formal
request for Solidarity Contribution from the Respondent in the sum of 5,500 plus
interest at the prevailing rate, as determined by FIFA, underlining that the transfer
at the basis of the dispute had occurred between two Associations and was,
therefore, considered international.
15.
By means of a fax of 29 June 2010, the Respondent replied that it did not accept
the comments made in the letter of 2 June 2010, that it had in anyway made a
request to Z FC, nor did it accept the arguments put forward in the letter of 3
February 2010 by the Claimant.
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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 case at hand. In this respect, it took note that the
present matter was submitted to FIFA on 10 July 2009, thus after 1 July 2008.
Consequently, the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (edition 2008; hereinafter: the
Procedural Rules) are applicable to the matter at hand (cf. art. 21 par. 1 and 2 of
the Procedural Rules).
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 2009), the Dispute Resolution Chamber is competent to decide on
the present litigation relating to solidarity contribution between clubs belonging
to different associations.
3.
Furthermore, taking into consideration that the player was registered with his
new club on 24 July 2007, and considering that the present claim was lodged on
10 July 2009, the Chamber analysed 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
(editions 2009 and 2008), the previous version of the regulations (edition 2005;
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, as established in art. 21 in
connection with annex 5 of the Regulations, if a professional moves during the
course of a contract, the new club of the player shall distribute 5% of any
compensation, with the exception of training compensation, paid to the player’s
former 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.
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5.
In continuation, the members of the Chamber noted that the Claimant first
requested from the Respondent the payment of the total sum of 5,545.21, but
then – shortly after – reduced its claim to the payment of the total sum of 5,500,
corresponding to 2.75% of the total transfer compensation paid for the transfer
of the player from the club, H FC, to the Respondent, together with interest
calculated on the outstanding sums at the appropriate rate, as solidarity
contribution for the seasons of the player’s 15th until 20th birthdays, i.e. the
sporting seasons 1998/1999, 1999/2000, 2000/2001, 2001/2002, 2002/2003 and
2003/2004.
6.
On the other hand, the members of the Chamber noted that the Respondent
objected to the Claimant’s claim that a solidarity payment is due, since the
Respondent plays in the same domestic pyramid as H FC, and that therefore this
particular transfer was deemed to be domestic, as it was from one club to another
being a member of the same league competition.
7.
In this respect, the members of the Chamber emphasised that art. 21 and annex 5
of the Regulations have to be read under the light of art. 1, which lays down the
scope of the Regulations and in particular to its par. 1 which establishes that the
Regulations deal with the status and eligibility of players, as well as with the rules
applicable whenever players move between clubs belonging to different
associations.
8.
In this regard, the Dispute Resolution Chamber highlighted the contents of art. 9
par. 1 ab initio of the Regulations, according to which players registered at one
association may only be registered at a new association once the latter has
received an International Transfer Certificate (hereinafter: ITC) from the former
association.
9.
In this respect, the Chamber acknowledged the undisputed fact that H FC is a club
affiliated to The Football Association (The FA) and that the Respondent is a club
affiliated to The W Football Association (WFA). The Chamber was eager to
emphasise that the Respondent itself had asserted that it was an affiliate of The W
Football Association especially when it concerns players’ transfers. Therefore,
notwithstanding the fact that H FC and the Respondent played in the same
domestic pyramid, and even in the same competition – i.e. the Football League
Championship – during the season 2007/08, the transfer of the player from H FC to
the Respondent is undoubtedly a transfer between clubs belonging to different
associations, also commonly called “international transfer”.
10.
For the sake of completeness, the members of the Chamber highlighted that The
W Football Association confirmed that the player had been registered with the
Respondent on 24 July 2007, once the “International Clearance” had been granted
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by The FA on that date (emphasis added). Thus, the Chamber underlined the fact
that the Respondent, although playing in a League affiliated to The FA, remains a
member club of The W Football Association exclusively, which generates
mandatorily an international transfer in case a player is transferred from a club
affiliated to The FA to a club affiliated to The W Football Association, reason for
which the player in question was registered at the said The W Football
Association.
11.
Having rejected the Respondent’s objection, the Chamber considered that the
solidarity contribution was due to the Claimant on the basis of the international
transfer of the player from H FC to the Respondent, i.e. between clubs belonging
to different associations.
12.
In continuation, the Chamber established that whenever a player moves during
the course of a contract and transfer compensation is paid to his former club,
solidarity contribution shall undoubtedly be due, and the calculation of this
solidarity contribution shall be established in casu in accordance with annex 5 of
the Regulations.
13.
In view of the aforementioned, the Chamber proceeded to the rightful calculation
of the solidarity contribution due to the Claimant by the Respondent. In this
respect, it recalled the provisions of art. 1 of annex 5 of the Regulations, which
stipulates that the amount payable as solidarity contribution is calculated on a pro
rata basis according to the period of training that the player spent with each club.
Furthermore, the Chamber underlined that the amount due for each season is
listed in a table mentioned under the aforesaid provision.
14.
In continuation, the Dispute Resolution Chamber duly noted that the Claimant is
requesting solidarity contribution for the training and education of the player for
the seasons 1998/99 until 2003/04, i.e. during six seasons, which correspond to the
seasons of the player’s 15th to his 20th birthday – as confirmed by The S Football
Federation (SFF) – in an amount of 5,500, as well as the payment of interests from
the due date of payment.
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15.
As a result, referring to the provision mentioned in point. II. 12 above, and taking
into account that the transfer compensation paid by the Respondent to H FC of
200,000 had not been contested by the Respondent, the Chamber ruled that the
Claimant is entitled to receive, for the season of the player’s 15th birthday, 5% of
the 5% of the relevant transfer compensation, and for each season of the player’s
16th to his 20th birthday (five seasons in total), 10% of the 5% of the relevant
transfer compensation. Thus, in total, for the six seasons during which the player
was registered with the Claimant, which correspond to the seasons of player’s 15th
to his 20th birthday, the Claimant is entitled to receive 55% of 5% of the relevant
transfer compensation, i.e. the amount of 5,500, as solidarity contribution.
16.
Furthermore, with regard to the Claimant’s claim for interests, the Chamber
established that, in view of the circumstances of the present case, and in line with
its constant practice, an interest rate of 5% interest per annum on the
aforementioned compensation shall be applicable in the matter at hand.
17.
Therefore, the Chamber held that the Respondent must pay the Claimant, in
addition to the solidarity contribution in the amount of 5,500, plus 5% interest
per annum on the said amount as from 24 August 2007, which corresponds to the
due date of the relevant payment of solidarity contribution.
18.
In view of all of the above, the Chamber decided that the claim of the Claimant,
FC R, is accepted.
19.
In continuation, the deciding authority referred to art. 25 par. 2 of the
Regulations in combination with 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.
20.
In this respect, the Chamber reiterated that the claim of the Claimant is accepted.
Therefore, the Respondent has to bear the costs of the current proceedings in
front of FIFA.
21.
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.
22.
The amount in dispute to be taken into consideration in the present proceedings
amounts to 5,500 related to the claim of the Claimant. Therefore, the Chamber
concluded that the maximum amount of costs of the proceedings corresponds to
CHF 5,000 (cf. table in Annexe A).
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23.
Considering that the case at hand allowed to be dealt with following a reasonable
procedure, that the case was adjudicated by the Chamber, that the present case
did not show particular factual difficulty and that it did not involve specific legal
complexity, the Chamber determined the final amount of costs of the current
proceedings to the amount of CHF 4,000.
24.
In view of all of the above, the Chamber concluded that the amount of CHF 4,000
has to be paid by the Respondent to FIFA to cover the costs of the present
proceedings.
*****
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III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, FC R, is accepted.
2.
The Respondent, W Football Club, has to pay to the Claimant, FC R, the amount of
5,500 plus 5% interest per annum as of 23 August 2007, within 30 days as from
the date of the notification of this decision.
3.
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.
4.
The final amount of costs of the proceedings in the amount of CHF 4,000 are to be
paid by the Respondent, W Football Club, within 30 days as of notification of
the present decision to the following bank account with the reference to case nr.
XX:
UBS Zurich
Account number 366.677.01U (FIFA Players’ Status)
Clearing number 230
IBAN: CH27 0023 0230 3666 7701U
SWIFT: UBSWCHZH80AW FC
5.
The Claimant, FC R, is directed to inform the Respondent, W Football Club,
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:
Jérôme Valcke
Secretary General
Encl.
CAS directives
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