Solidarity Contribution
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 3 July 2008,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Mario Gallavotti (Italy), member
Sofoklis Pilavios (Greece), member
Carlos Soto (Chile), member
Theo van Seggelen (The Netherlands), member
on a matter between the club
J
and the club
A
and the club
B
as intervening party
regarding solidarity contribution related to
the transfer of the player F
I.
Facts of the case
1.
According to the player passport of the player F (hereinafter: the player), issued by
the A Football Association, the player, born on 3 January 1980, was registered
with the A club, J (hereinafter:, as an amateur from 14 March 1991 to 28 July 1998
and as a professional from 29 July 1998 to 6 February 2002, between the ages of
11 and 22.
2.
On 21 June 2007, the M club, A, and the G club, B, signed an agreement regarding
the transfer of the player from B to A for a compensation of USD 4,600,000.
3.
On 25 July 2007, J lodged a formal complaint at FIFA against A, requesting the
payment of the solidarity contribution for the period of 11 sporting seasons,
during which the player was between the ages of 11 and 22. This is, J requested
from A the payment of 4.5 % of the total transfer compensation agreed upon
between B and A, thus the amount of USD 207,000, plus 5 % of interest per year
on the said amount as of the due date of the amount claimed.
4.
In its response to the claim, A stated that it had paid to B the total transfer
amount agreed upon between itself and the G club, i.e. USD 4,600,000 and that it
had omitted to deduct the relevant proportion of the 5 % of the transfer
compensation pertaining to the solidarity contribution. Furthermore, A holds that,
in case the player’s new club omits to deduct the said percentage, the player’s
former club should reimburse the relevant proportion of the 5 % of the
compensation it received from the player’s new club. In this respect, A states that
B should reimburse the relevant amount of solidarity contribution directly to J,
since B had wrongly received the total amount of transfer compensation.
5.
Upon receipt of A’s position, on 6 February 2008, FIFA informed all the parties
concerned about the jurisprudence of the Dispute Resolution Chamber in similar
cases in accordance with which the player’s new club, in casu A, is ordered to remit
the relevant proportion(s) of the 5% solidarity contribution to the club(s) involved
in the player’s training, in casu J, in strict application of the relevant provisions of
the Regulations for the Status and Transfer of Players. At the same time, the
player’s former club, in casu B, is ordered to reimburse the same proportion(s) of
the 5% of the compensation that it received from the player’s new club. FIFA
informed the parties that the said jurisprudence is based on the 2001 edition of
the said Regulations but that the 2005 edition of the Regulations did not change
as to the substance of the relevant aspect.
6.
After having received FIFA’s aforementioned correspondence, B stated that, in
general, it is correct that the former club would have to reimburse the new club
Player F
(Club J / Club A / Club B)
2
the relevant proportion of solidarity contribution, if the latter had accidentally
omitted to retain the relevant amount. Moreover, B claims that this principle is,
however, not applying unrestrictedly. Particularly, according to B’s position, the
above-mentioned principle does not apply if the parties agreed upon something
different in the transfer contract they concluded. In view of the above and,
particularly with regard to § 3 of the transfer contract, which stipulates that “The
complete amount is payable immediately by wire transfer after receipt of invoice
to the account […]. After reception of the complete amount of US-$ Mio 4,6 B will
release the player in favour of CF A”, B claims that the parties explicitly agreed
that the complete transfer compensation agreed upon between the parties has to
be paid to B by A and that, in other words, therefore, the Mexican club is not
eligible to retain any monies. Furthermore, regarding the word “complete”, which
was used in the transfer agreement concluded between A and B, the latter argues
that the said word does not mean anything else than “without any deduction” or
“net price”. Therefore, A is not entitled to claim the reimbursement of the
applicable amounts of solidarity contribution from B.
7.
Furthermore and subsidiary, in case the DRC should decide that, notwithstanding
the above-said, A is entitled to receive a reimbursement from B, B claims that it
can only be sentenced to reimburse A insofar as the latter demonstrably and
effectively paid the relevant amounts of solidarity contribution to the clubs which
trained the player.
8.
J declared in its replica that the relevant amount of solidarity contribution is only
due by A.
9.
In their final statements, A and B adhered to their previous statements.
Player F
(Club J / Club A / Club B)
3
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber analysed whether it was competent to
deal with the matter at hand. In this respect, it took note that the present matter
was submitted to FIFA on 25 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 J in connection with the transfer of the
professional F during the course of a contract.
3.
Furthermore, and taking into consideration that the player was registered with his
new club in summer 2007, 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 (edition 2008), and considering that the present matter was submitted
to FIFA on 25 July 2007, the previous edition 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 J lodged a formal complaint at
FIFA against A, requesting the payment of the solidarity contribution for the
period of 11 sporting seasons, during which the player was between the ages of
11 and 22. This is, the Chamber took due note that J requested from A the
payment of 4.5 % of the total transfer compensation agreed upon between B and
A, thus the amount of USD 207,000, plus 5 % of interest per year on the said
amount as of the due date of the amount claimed.
5.
In continuation, the Chamber emphasised that, as established in art. 21 of the
Regulations in connection with Annex 5 of the Regulations, the new club of the
player has to distribute 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 birthday.
Player F
(Club J / Club A / Club B)
4
6.
In this respect, the Chamber duly noted that A asserts having paid the entire
amount of USD 4,600,000 agreed upon as transfer compensation to B and that
therefore, the latter would be responsible to reimburse the relevant solidarity
contribution to A. In other words, A holds that it omitted to deduct 5% of the
relevant transfer compensation related to the solidarity mechanism. This
allegation, however, is contested by B, which holds that, according to the transfer
agreement concluded between itself and A, the parties explicitly agreed that the
complete transfer compensation has to be paid to B by A and that, in other words,
therefore, A is not eligible to retain any monies. Furthermore, regarding the word
“complete”, which was used in the transfer agreement concluded between A and
B, the latter argues that the said word does not mean anything else than “without
any deduction” or “net price”. On account of these circumstances, A is, according
to B, not entitled to claim the reimbursement of the applicable amounts of
solidarity contribution from B.
7.
After examining § 3 of the transfer agreement signed between A and B, the
Chamber considered that the said provision of the contract does, notwithstanding
the argumentation put forward by B, not lead to the conclusion that the parties
agreed that A should pay the full transfer amount and, in addition, also the
relevant proportion(s) of the 5 % solidarity contribution to the club(s) which
trained the player. Rather, the Chamber deemed it appropriate to point out that
the content of the said clause is in contradiction to art. 21 and Annex 5 of the
Regulations, this is, the relevant article of the Regulations cannot be set aside by
means of a contract concluded between the clubs involved in a player’s transfer. In
other words, the said article of the Regulations is mandatory and its
implementation shall not be affected by clubs involved in a player’s transfer
agreeing upon other terms.
8.
On account of the above, the Chamber then referred to its well-established
jurisprudence applied in similar cases, in accordance with which the player’s new
club is ordered to remit the relevant proportion(s) of the 5% solidarity
contribution to the club(s) involved in the player’s training in strict application of
art. 21 and Annex 5 of the Regulations. At the same time, the player’s former club
is ordered to reimburse the same proportion(s) of the 5% of the compensation
that it received from the player’s new club.
9.
As a result, and in application of the said jurisprudence, the DRC decided that the
argument of B could not be taken into consideration.
Player F
(Club J / Club A / Club B)
5
10.
The Chamber then referred to art. 1 of Annex 5 of the Regulations which provides
the figures for the distribution of the solidarity contribution, according to the
period in which the player was effectively trained by the club(s) involved.
11.
In this regard, the Chamber outlined that the period to be taken into
consideration (period of registration of the player with J) had to be determined
according to the confirmation issued by the A Football Association. In this respect,
the Chamber acknowledged that the player was registered for J from 14 March
1991 until 7 February 2002. Consequently, the Chamber decided that J was
entitled to receive solidarity contribution for the period of 1 July 1991 until 7
February 2002, i.e. for the entire seasons of the player’s 12th birthday (1991/1992)
to his 21st birthday (2000/2001) and for 7 months of the season of the player’s 22nd
birthday (2001/2002). Therefore, the Chamber concluded that the period of
effective training to be taken into account corresponds to ten sporting seasons
and 7 months.
12.
In view of the above, the Chamber established that, in accordance with the
breakdown provided for in art. 1 of Annex 5 of the Regulations, J is entitled to
receive 85.83 % of the 5% of the compensation paid in relation to the transfer of
the player from B to A.
13.
In this respect, the Chamber noted that according to the transfer agreement
remitted to the file, the player was transferred for the amount of USD 4,600,000.
14.
Moreover, the Chamber decided that the Claimant should be awarded the claimed
default interest at a rate of 5% per year as from the date on which the amount
payable as solidarity contribution fell due, i.e. on 30 August 2007. In this respect,
the Chamber referred to art. 2 par. 1 of Annex 5 of the Regulations, according to
which the new club shall pay solidarity contribution no later than 30 days after the
player’s registration (30 July 2007).
15.
Based on all of the above, the Dispute Resolution Chamber decided that A has to
pay to J the amount of USD 197,417, plus 5 % default interest per year on the said
amount as from 30 August 2007.
16.
Finally, the Chamber decided that B has to reimburse the amount of USD 197,417
to A (cf. point II.8.).
***
Player F
(Club J / Club A / Club B)
6
III.
Decision of the Dispute Resolution Chamber
1.
The claim of J is partially accepted.
2.
Club A has to pay the amount of USD 197,417, as well as 5% interest per year on
the said amount as from 30 August 2007 until the date of the effective payment,
to J within 30 days as from the date of notification of this decision.
3.
Any further claims lodged by J are rejected.
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
so that the necessary disciplinary sanctions may be imposed.
5.
J is directed to inform Club A 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.
6.
B has to reimburse the amount of USD 197,417 to Club A within 30 days as from
the date of notification of the present decision.
7.
If the aforementioned sum is not paid within the aforementioned deadline, an
interest rate of 5% per year will apply as of expiry 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.
8.
Club A is directed to inform B 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.
***
Player F
(Club J / Club A / Club B)
7
Note relating to the motivated decision (legal remedy):
According to article 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
Player F
(Club J / Club A / Club B)
8