Solidarity Contribution
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 31 July 2008,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Joaquim Evangelista (Portugal), member
Mario Gallavotti (Italy), member
on the claim presented by the
B Football Federation
as Claimant
against the club,
S
as Respondent
regarding the solidarity contribution related to the
transfer of the player C
I.
Facts of the case
1.
The player passport of the player, C, born on 27 April 1980 (hereinafter: the player),
was issued in July 2007 by the B Football Federation (hereinafter: the Claimant) and
indicates the following:
-
1 January 1992 to 6 July 1997
7 July 1997 to 27 October 1998
28 October to 19 November 1998
20 November 1998 to 31 December 2003
=> no record found
=> FC M
=> no record found
=> FC CP
2.
According to the confirmation of the P Football Federation, the player was
registered on 8 August 2005 for its affiliated club, S (hereinafter: the Respondent).
3.
On 11 July 2007, the Claimant lodged a formal complaint against the Respondent at
FIFA, requesting payment of the solidarity contribution for the period from 1
January 1992 until 19 November 1998 corresponding to 48.85% of the proportion
of 5% of the solidarity mechanism and amounting to EUR 85,487.50.
4.
The Claimant stated that, in July 2005, the player was allegedly transferred from the
B club, FC CP, to the Respondent, and that the transfer compensation paid had
been disclosed by non-official media sources as EUR 3,500,000.
5.
The Claimant based its alleged right to receive the above-mentioned amount on the
fact that “although A […] was registered with FC M from July 7th, 1997, to October
27th, 1998, no claim was presented by such Club regarding the solidarity
contribution for the above mentioned period” and that “furthermore, […] A’s
career cannot be linked to any club for the period comprehended between January
1st, 1992 […], and July 6th, 1997 […], and also in the period comprehended
between October 28th and November 19th, 1998 […]”.
6.
On 14 May and 23 June 2008, FIFA invited the Claimant to elaborate on why the
player cannot be linked to any club for the relevant period of time (“no record
found”). By means of its answer dated 1 July 2008, the Claimant informed FIFA that
it was not possible to determine where the player had been trained in the relevant
period. It stated that in B, most players start their careers in clubs of their
neighbourhood, schools or even in, i.e. clubs which are not affiliated to the
Claimant. The Claimant asserted that the player had for sure been trained and
educated by a club, however, by a club or a kind of “football school” which is not
affiliated to the Claimant and which is therefore not entitled to claim solidarity
contribution, even though those clubs develop a crucial task in B football.
Therefore, the Claimant is of the opinion that the football associations are entitled
to claim for solidarity contribution on behalf of such non-affiliated entities.
Distribution of the solidarity contribution for the player C
(B Football Federation / S)
2
7.
Furthermore, the Claimant put forward that it only needed to demonstrate that no
link could be established between the player and any club and did not have to
prove that the player had actually been trained by a club.
8.
On 24 January, 17 March and 21 July 2008, FIFA contacted the Respondent via the P
Football Federation and invited it to provide FIFA with its position on the matter as
well as to remit all the relevant documents in support of its position. Equally, FIFA
informed the club that in absence of a statement within the given deadline, the
case would be submitted to the Dispute Resolution Chamber for consideration and
a formal decision on the basis of the documentation already on file. However, the
Respondent did not react at all.
9.
Finally, the Claimant informed FIFA that the B sportive season follows the calendar
year and runs from January to December.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber 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 11 July 2007. Consequently, the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(edition 2005; hereinafter: the Procedural Rules) are applicable to the matter at
hand (cf. art. 18 par. 2 and 3 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 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 Claimant, the B Football Federation, in
connection with the transfer of the professional player, C, during the course of a
contract.
3.
In this respect, the deciding authority also referred to art. 24 par. 2 of the
Regulations on the Status and Transfer of Players (edition 2008), according to which
the Chamber shall adjudicate in the presence of at least three members, including
the chairman. As a result, with the present formation, the relevant formal
prerequisite was met.
4.
Furthermore, and taking into consideration that the player was registered with his
new club on 8 August 2005, the Chamber analysed which regulations should be
Distribution of the solidarity contribution for the player C
(B Football Federation / S)
3
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 matter was submitted to
FIFA on 11 July 2007, the previous edition of the regulations (edition 2005;
hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
5.
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 of the
Regulations in connection with Annex 5 of the Regulations, as a general rule the
new club of the player has to distribute as a solidarity contribution 5% of any
compensation paid to the previous 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 club(s) between the seasons of his 12th and 23rd
birthdays.
6.
The Chamber underlined that in the present case, it was an association and not a
club which claimed payment of the solidarity contribution. Therefore, it first had to
analyse whether the conditions set forth in art. 2 par. 3 of Annex 5 of the
Regulations were fulfilled.
7.
The Chamber recapitulated that the aforementioned provision stipulates that if a
link between a professional and any of the clubs that trained him cannot be
established within 18 months of his transfer, the solidarity contribution shall be
paid to the association(s) of the country where the professional was trained.
8.
On this basis, the Chamber pointed out that, at first, it had to analyse whether the
time frame of 18 months for the possible establishment of a link between a
professional player and a club had already elapsed after the transfer of the player
to the Respondent, which was a prerequisite contained in art. 2 par. 3 of Annex 5 of
the Regulations.
9.
To that regard, the members of the Chamber stated that the transfer of the player
from the B club, C P, to the Respondent had taken place in July 2005 and referred to
art. 2 par. 1 of Annex 5 of the Regulations, which stipulates that the solidarity
contribution to the training club(s) should be paid by the new club no later than 30
days after the player’s registration, which was, in casu, on 8 August 2005.
10.
In view of the aforementioned, the Chamber took note that the required time
frame of 18 months for the possible establishment of a link between the player and
a training club had elapsed and that therefore, the Claimant was, in principle,
Distribution of the solidarity contribution for the player C
(B Football Federation / S)
4
entitled to claim the relevant proportion of the 5% pertaining to the solidarity
contribution.
11.
In continuation, the Chamber took note of the fact that, in support of its claim, the
Claimant had submitted a copy of the player passport according to which in the
period from 1 January 1992 until 6 July 1997 and 28 October to 19 November 1998,
no record could be found with regard to the registration of the player.
12.
In view of the aforementioned, the members of the Chamber acknowledged that as
asserted by the Claimant, no link could be established between the player and any
of the clubs affiliated to the B Football Federation that allegedly trained him during
the aforementioned period.
13.
Equally, the Chamber duly considered the arguments of the Claimant, according to
which the player had “for sure” been trained and educated by a club, however, by a
club or a kind of “football school” which is not affiliated to the Claimant and which
is therefore not entitled to claim solidarity contribution, even though those clubs
develop a crucial task in B football.
14.
To that regard, the Chamber was eager to refer to art. 2 par. 3 of Annex 5 of the
Regulations according to which the solidarity contribution shall be paid to the
association of the country where the professional was trained “if a link between the
Professional and any of the clubs that trained him cannot be established within 18
months of his transfer”(emphasis added).
15.
On the basis of the aforementioned wording, the members of the Chamber were
eager to emphasise that the Regulations clearly and unambiguously request for the
player to have been trained in football during the period of time in which no link
between the professional player and any of the clubs that trained him can be
established. Only such understanding can properly reflect the aim and ratio of the
solidarity mechanism which is to reward the clubs investing in the football training
and education of young players. In other words, if prior to enter into football a
player practised no sport at all or another sport, that training cannot be
compensated within the football structures.
16.
As a result, the Chamber unanimously concluded that, contrary to the Claimant’s
position, it is an association’s responsibility not only to demonstrate that no link
could be established between a professional and a club but also to give evidence for
the player to have actually been trained in football during the relevant period of
time, if it intends to claim part of the solidarity contribution.
17.
Therefore, if there are no records found with regard to the registration of the
player and no evidences are provided that the player was clearly trained in football
Distribution of the solidarity contribution for the player C
(B Football Federation / S)
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by a club during the relevant period of time, the new club of the player is not
obliged to pay any solidarity contribution for the period where no records were
found.
18.
In this respect, the Chamber stressed that in the case at hand the Claimant had
failed to provide FIFA with any documentary evidence at all which would have
indicated that the player was indeed trained in football by any club during the
period in which no records regarding his registration could be found. In particular,
no documents corroborating the statement that the player had for sure been
trained and educated by a club or a kind of football school not affiliated to the B
Football Federation were presented.
19.
On the basis of all these considerations, the Chamber unanimously concluded that a
change of its previous position was justified (one decision with divergent opinion
had been passed at an earlier meeting, yet with less detailed consideration) and
therefore, the claim of the Claimant for the solidarity contribution for the periods
from 1 January 1992 until 6 July 1997 and 28 October to 19 November 1998 has to
be rejected.
20.
The Chamber then went on in acknowledging that, according to the player
passport, the player was registered for FC M as from 7 July 1997 until 27 October
1998, that the latter club never asked for payment of the relevant proportion of the
solidarity contribution and that the player was, according to the Claimant,
transferred to the Respondent for the amount of EUR 3,500,000.
21.
Turning its attention to the Respondent’s stance, the members of the Chamber took
note of the fact that it never provided FIFA with its position in the present
proceeding, despite having been asked by FIFA to do so on several occasions.
22.
In continuation, the Chamber then stated that as a general principle of procedure,
also before the Dispute Resolution Chamber, if a respondent does not reply to the
claim of the claimant, the case shall be decided by the Dispute Resolution Chamber
in particular on the basis of the facts and proofs provided by the claimant (c.f. art. 9
par. 3 of the Procedural Rules), since by its conduct, the respondent renounced its
right of defence.
23.
Consequently, the Chamber concluded that the Respondent, by failing to submit its
position in the present procedure, admitted in particular, the allegation of the
Claimant that the transfer compensation paid for the transfer of the player from
the club, CP, to the Respondent amounted to EUR 3,500,000.
24.
Furthermore, the deciding authority remarked that the player had uncontestedly
been trained and educated by FC M for a certain period of time between the
Distribution of the solidarity contribution for the player C
(B Football Federation / S)
6
seasons of his 12th and 23rd birthdays, and that the said club had not asked for the
respective payments related to the solidarity mechanism. In other words, the said
club had not made itself known in connection with a potential entitlement to a
solidarity contribution, but during the relevant period of time the player had
certainly been trained in football by a club affiliated to the Claimant. Therefore, in
line with its previous considerations pertaining to the period where no records
regarding the player’s registration could be found, the Chamber determined that,
based on art. 2 par. 3 of Annex 5 of the Regulations, the Claimant was entitled to
receive the solidarity contribution for the relevant period of training.
25.
The Chamber then referred to art. 1 of Annex 5 of the Regulations which provides
for the percentages of the single shares for the distribution of the solidarity
contribution, according to the period in which the player was effectively trained by
the club(s) involved.
26.
In the present case, the Chamber outlined that according to the confirmation of the
Claimant (player passport), the period to be taken into consideration is the
following: 7 July 1997 until 27 October 1998 (period of registration for FC M i.e. at
the player’s ages of 17 to 18. In this respect, the Chamber concluded that the
relevant period to be taken into account corresponds to 6 months of the sporting
season 1997 (season of the player’s 17th birthday) and 10 months of the sporting
season 1998 (season of the player’s 18th birthday), i.e. in total 16 months.
27.
Therefore, the Chamber established that, in accordance with the breakdown
provided for in art. 1 of Annex 5 of the Regulations, the Claimant is entitled to
receive 13.3% of the 5% of the compensation paid in relation to the transfer of the
player from Corinthians Paulista to the Respondent.
28.
The Chamber concluded that any amount above the established percentage of
13.3% of the 5% claimed by the Claimant has to be rejected.
29.
Finally, the Chamber recalled that, the transfer compensation agreed for the
relevant move of the player amounted to EUR 3,500,000 (cf. also points II. 20 to 23
of the present considerations).
30.
Based on all of the above, the Dispute Resolution Chamber decided that the
Respondent has to pay to the Claimant as solidarity contribution 13.3 % of the 5%
of the transfer compensation paid in relation to the transfer of the player C from
the club C P to the Respondent, corresponding to the amount of EUR 3,500,000, i.e.
EUR 23,330. In accordance with art. 2 par. 3 of Annex 5 of the Regulations this
amount shall be earmarked for youth football development programmes in the B
Football Federation.
Distribution of the solidarity contribution for the player C
(B Football Federation / S)
7
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, the B Football Federation, is partially accepted.
2.
The Respondent, S, has to pay the amount of EUR 23,330 to the Claimant within 30
days as from the date of notification of this decision.
3.
The aforementioned amount is to be earmarked for youth football development
programmes in the Claimant.
4.
Any further claims lodged by the Claimant are rejected.
5.
If the aforementioned sum is not paid within the aforementioned deadline, an
interest rate of 5% per year will apply as of expiring of the fixed time limit and the
present matter shall be submitted upon request to FIFA’s Disciplinary Committee so
that the necessary disciplinary sanctions may be imposed.
6.
The Claimant is directed to inform the Respondent 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.
*****
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).
Distribution of the solidarity contribution for the player C
(B Football Federation / S)
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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
Distribution of the solidarity contribution for the player C
(B Football Federation / S)
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