Solidarity Contribution
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 28 July 2005,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Jean-Marie Philips (Belgium) member
Philippe Diallo (France) member
Gerardo Movilla (Spain) member
Philippe Piat (France) member
on the claim presented by the
Club X, Brazil
as Claimant
against the
Club Y, France
as Respondent
regarding the solidarity contribution related to the transfer of the federative rights to
the player A
I.
Facts of the case:
1.
The player A, born on 14 March 1979, was registered with the Brazilian club, X,
Claimant, from 26 April 1996 to 17 February 1997, that is, for 1 season between
the ages of 17 and 18.
2.
The Claimant is claiming the portion of 10% of the 5 % payment established in
article 25 of the FIFA Regulations for the Status and Transfer of Players (edition
2001) regarding the contribution to the solidarity mechanism related to the
transfer of the federative rights to the player A from the Brazilian club S to the
French club Y, Respondent.
3.
According to the article 25 of the FIFA Regulations for the Status and Transfer of
Players (edition 2001), the new club concerned is to distribute 5% of the
compensatory amount paid to the player’s former club to the club(s) where the
player has played between the ages of 12 and 23. In the present case, between the
year 1991 and the year 2002.
4.
On 5 November 2004, the Respondent informed the FIFA administration that the
player was transferred to them in August 2001 from the Brazilian club, S, i.e.
before the coming into force of the FIFA Regulations for the Status and Transfer
of Players edition 2001, which contain the relevant provisions related to the
solidarity contribution.
5.
Furthermore, the Respondent stated that it paid the amount of USD 4,700,000 to S
on 10 August 2001. In this respect, the Respondent pointed out that art. 46 par. 3
of the FIFA Regulations for the Status and Transfer of Players (edition 2001),
clearly establishes that contracts between players and clubs concluded before 1
September 2001 will continue to be governed by the previous version of the
mentioned Regulations, i.e. the Regulations edition October 1997, unless the clubs
and the players expressly agree to subject their agreements signed after 5 July
2001 to the new Regulations (edition 2001). Therefore, and since the transfer
contract did not establish that the “new” Regulations should be applicable, the
Respondent is of the opinion that the provisions related to the solidarity
mechanism are not applicable in the present case. The copy of the transfer
agreement it concluded with the club S provided by the French club is undated.
6.
On 15 April 2005, the Claimant provided supplementary evidence and information.
In particular, the Claimant pointed out that in accordance with the records of the
Brazilian Football Federation the transfer of the player involved to the
Respondent took place on 31 July 2003 and that the player was registered with
the Respondent in the year 2003 only.
7.
As a result, the Claimant is of the opinion that it is entitled to receive the
proportion of 10% of the 5% of the transfer compensation paid by the
Respondent to S on the basis of the solidarity mechanism.
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8.
On 31 Mai 2005, the Respondent again stressed that the transfer agreement
signed with the Brazilian club, S, was concluded in August 2001, i.e. before the
coming into force of the FIFA Regulations edition 2001. Moreover, the Respondent
pointed out that also the fact that it paid the agreed transfer compensation on 10
August 2001 confirms that the relevant transfer agreement was concluded before
September 2001. In this respect, the Respondent provided a dated copy of the
payment receipt.
9.
As a result, the Respondent is of the opinion that the FIFA Regulations edition
2001 are not applicable on the present case.
10.
On 14 June 2005, the Claimant contested the position of the French club and
pointed out that in accordance with art. 11 par.1 of the Regulations Governing the
Application of the FIFA Regulations (edition 2001), the payment of the solidarity
contribution is not linked to the date of the signature of the transfer contract but
rather to the player’s effective transfer and registration.
11.
As a result, and taking into account that the player involved was registered with
the Respondent in July 2003, the Claimant is requesting the payment of the
solidarity contribution amounting to 10% of 5% of USD 4,700,000, i.e. the
amount of USD 23,500.
II.
Considerations of the Dispute Resolution Chamber:
1.
The Dispute Resolution Chamber commenced its deliberations by referring to art.
25 of the FIFA Regulations for the Status and Transfer of Players [edition 2001]
(hereinafter: the Regulations), according to which it falls within the purview of the
Dispute Resolution Chamber to review disputes concerning the distribution of the
solidarity contribution. Consequently, the Chamber established that it was
competent to deal with the present litigation.
2.
In continuation, the Chamber expressed that, in view of the position of the
Respondent, first of all and as a central issue, it needed to verify which version of
the FIFA Regulations for the Status and Transfer of Players has to be applied on
the transfer of the player, A, from the club S to the Respondent. In particular, the
Chamber observed that it had to establish whether the edition October 1997 or
the edition 2001 of the FIFA Regulations were applicable on the relevant transfer.
3.
In this respect, the Chamber acknowledged that the Respondent contested its
obligation to pay any compensation as established in article 25 of the FIFA
Regulations edition 2001 regarding the contribution to the solidarity mechanism
related to the transfer of the federative rights to the player A from S to the
Respondent. In particular, the Respondent underlined that the relevant transfer
agreement was signed in August 2001 and that the relevant transfer
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compensation was paid to the player’s former club on 10 August 2001, i.e. before
the coming into force of the FIFA Regulations edition 2001 based on which the
Claimant is requesting the relevant contribution.
4.
On the other hand, the Chamber noted that the Claimant contested the
Respondent’s position arguing that the payment of the solidarity contribution is
not linked to the date of the signature of the transfer contract, but rather to the
player’s effective transfer and registration.
5.
In this respect, the Chamber observed that although the relevant transfer
agreement signed between the Respondent and S is undated, the Claimant did
not contest the Respondent’s affirmation that the mentioned contract was signed
in August 2001. Moreover, the Chamber observed that the Respondent uphold this
fact by providing a copy of the payment receipt related to the transfer
compensation dated 10 August 2001.
6.
Taking into account the above, and after carefully analyzing the relevant contract,
the Chamber deemed that there are no reasons to doubt that the transfer
agreement at the basis of the present dispute was signed in August 2001.
7.
In continuation, the Chamber established that by the time the relevant transfer
agreement was signed the FIFA Regulations edition 1997 were still in force, which
leads to the conclusion that the FIFA Regulations edition 2001 would only be
applicable if in accordance with art. 46 par. 3 of the FIFA Regulations edition 2001,
the Respondent and S would have expressly agreed to subject their agreement to
the FIFA Regulations edition 2001.
8.
In this respect, the Chamber observed that since the above-mentioned was
uncontestedly not the case, it can be concluded that the FIFA Regulations edition
2001 are not applicable on the relevant transfer agreement at the basis of the
present dispute.
9.
For the sake of good order, the Chamber deemed important to clarify that
although the point in time for the payment of the solidarity contribution is not
linked to the date of the signature of the transfer contract but rather to the
moment of a player’s registration, the applicable FIFA Regulations are linked to
the date of the signature of the relevant contract.
10.
As a result, the Chamber concluded that the FIFA Regulations edition 1997 are
applicable on the transfer of the player, A, from S to the Respondent. In this
respect, the Chamber underlined that the relevant Regulations did not provide for
any solidarity mechanism. As a consequence, the Chamber established that the
argumentation of the Respondent needs to be upheld.
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11.
Taking into account all of the above, the Dispute Resolution Chamber decided
that there are no legal grounds based on which the Respondent should pay any
solidarity contribution to the Claimant.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, X, is rejected.
2.
According to art. 60 par. 1 of the FIFA Statutes this decision may be appealed
before the Court of Arbitration for Sport (CAS). The statement of appeal must be
sent to the CAS directly within 10 days of receiving notification of this decision
and has to contain all elements in accordance with point 2 of the directives issued
by the CAS, copy of which we enclose hereto. Within another 10 days following
the expiry of the time limit for the filing of the statement of appeal, the appellant
shall file with the CAS a brief stating the facts and legal arguments giving rise to
the appeal (cf. point 4 of the directives).
The full address and contact numbers of the CAS are the following:
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 Champagne
Deputy General Secretary
Encl.
CAS directives
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