Solidarity Contribution
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 19 August 2010,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Michele Colucci (Italy), member
Takuya Yamazaki (Japan), member
Philippe Diallo (France), member
Damir Vrbanovic (Croatia), member
on a matter between the club
T,
and the club
W,
and the club
B,
as Intervening party
regarding a dispute for solidarity contribution in connection with the
transfer of the player N.
I.
Facts of the case
1.
The Football Federation D confirmed that the player, N (hereinafter: the player),
born on 27 July 1989, was registered with its affiliated club, T (hereinafter: T) as
from 15 August 1999 until 26 September 2005 as an amateur.
2.
The relevant sporting seasons in D ran from 1 July until 30 June of the following
year.
3.
In accordance with a written confirmation from The Football Association, the
player was registered with its affiliated club, W (hereinafter: W), on 29 January
2009.
4.
On 15 July 2009, the club T contacted FIFA claiming its proportion of the solidarity
contribution in connection with the transfer of the player from the club B
(hereinafter: the Intervening party or B) to W for the alleged amount of EUR
11,000,000.
5.
On account of the above, T requested 1.12% of the total transfer compensation
paid in connection with the relevant transfer of the player, i.e. the payment of
EUR 123,200 plus interest of 5% as from 28 February 2009.
6.
On 23 April 2010, W provided FIFA with a copy of the relevant transfer agreement
dated 25 January 2009 concluded between it and the club B, confirming that the
player had been transferred from the club, B, to the club W for a transfer
compensation in the amount of EUR 6,000,000 payable in three equal instalments
of EUR 2,000,000 as well as a further amount of EUR 60,000 "as Solidarity
Contribution".
7.
According to clause 1.7 of the transfer agreement, "The parties agree that the club
B will directly discharge the Solidarity Contribution from the payment of 60,000
euros (referred to in clause 1.2 above) which maybe due to the previous, training
clubs of the Player pursuant to the FIFA Regulations calculated in relation to this
Transfer of the Player from the club B to the club W. The club B agree that it shall
be solely responsible for the payment of the Solidarity Contribution to any
previous football club seeking any such solidarity payment in connection with the
Player and shall indemnify and keep indemnified W in respect of any payment that
W is required to pay to any football club."
8.
On account of the above, the club W suggested that the club T contacts the club B
directly in order to receive solidarity contribution, since, in its view, the club B was
solely responsible for the payment of solidarity contribution and "since the club W
paid to the club B an amount of EUR 60,000 to cover any solidarity claims."
9.
On 20 May 2010, FIFA informed all the parties of its jurisprudence, 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 the relevant provisions of the Regulations on the Status and
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Transfer of Players. 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.
In conformity with the above-mentioned
jurisprudence, FIFA invited the club W to distribute the relevant proportion of the
5% solidarity contribution of the transfer compensation to the club T and the club
B to reimburse the club W the relevant proportion of the 5% of the amount of
compensation agreed.
10.
On 26 May 2010, the club W referred once again to clause 1.7 of the transfer
agreement, according to which the club B would be responsible for the payment
of any solidarity contribution. The club W also underlined that it had already paid
any amount to cover solidarity contribution claims to the club B. However, the club
W agreed to pay the relevant solidarity contribution to the club T, once the club B
has reimbursed the amount of EUR 60,000 mentioned in clause 1.7 of the relevant
transfer agreement.
11.
The club B did not submit any comments to FIFA.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber analysed whether it was competent to
deal with the present matter. In this respect, it noted that the claim at the basis of
the present case was submitted to FIFA on 15 July 2009, thus after 1 July 2008.
Consequently, the 2008 edition of the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (edition 2008;
hereinafter: the Procedural Rules) is applicable to the matter at hand (cf. art. 21
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
connection with art. 22 lit. d) of the Regulations on the Status and Transfer of
Players (edition 2009), the Dispute Resolution Chamber shall adjudicate on
disputes relating to the solidarity mechanism between clubs belonging to
different associations. As a consequence, the Dispute Resolution Chamber
confirmed that it was competent to decide on the present litigation involving an
X, a Y and a Z club and concerning the distribution of the solidarity contribution
in connection with the international transfer of the player N.
3.
Furthermore, and taking into consideration that the player was registered with his
new club, the club W, on 29 January 2009 and that the present claim was lodged
before FIFA on 15 July 2009, the Chamber analysed which regulations should be
applicable as to the substance of the matter. In this respect, it referred to art. 26
par. 1 and 2 of the Regulations on the Status and Transfer of Players (edition
2009), and concluded that the 2008 edition of the regulations, the FIFA
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Regulations on the Status and Transfer of Players (edition 2008; hereinafter: the
Regulations) is applicable to the matter at hand as to the substance (cf. art. 26 par.
1 and 2 of the Regulations).
4.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter and started by
acknowledging the facts of the case as well as the documentation submitted by
the parties.
5.
To begin with, the Chamber sought to underline that it remained undisputed that
the club W had concluded a transfer agreement with the Intervening party for the
transfer of the player and had paid the relevant amount of transfer compensation.
As a matter of fact, the club W itself had stated in its submission that it was willing
to pay the relevant amount of solidarity contribution to the club T, once it has
been reimbursed an amount of EUR 60,000 by the Intervening party.
6.
Equally, the members of the Chamber acknowledged that according to the
transfer agreement provided by the club W, the player had been transferred from
the Intervening party to the club W for a total transfer compensation of EUR
6,000,000 plus EUR 60,000 to cover any claim related to solidarity mechanism.
7.
The Chamber further noted that the club W had argued that the Intervening party
was responsible for future payment of solidarity contribution and that the club W
had already paid an amount to the Intervening party to cover "the solidarity claim
of the club T". In other words, the club W had omitted to deduct 5% of the
relevant transfer compensation relating to the solidarity mechanism.
8.
In turn, the Chamber remarked that the Intervening party did not submit any
comments and thus, accepted the allegations of the parties involved in the present
matter.
9.
In continuation, the members of the Chamber went on to recall that according to
art. 21 of the Regulations in connection with Annexe 5 of the Regulations, if a
professional player 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 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.
10.
In view of the above-mentioned provisions, the Chamber underlined that, in the
matter at hand, a proportion of 5% of the compensation paid by the player’s new
club, in casu the club W, to his former club, in casu the Intervening party, should
have been deducted (cf. art. 1 of Annexe 5 of the Regulations) from the total
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amount of the transfer compensation paid by the former in order to be
distributed as solidarity contribution to the club(s) involved in the training and
education of the player concerned.
11.
In addition to the above-mentioned considerations, the Chamber underlined that
in view of the clear wording of the aforementioned applicable provisions, it was
evidently not left at the discretion of the parties to change such an explicit rule.
The Chamber, thus, emphasised that the deduction of a proportion of 5% of the
total transfer compensation paid to the player's former club was absolutely
mandatory. Therefore, the parties to a transfer agreement have to abide by the
Regulations in terms of the party responsible for the distribution of the solidarity
contribution to the clubs having trained and educated the player concerned.
12.
The Chamber also held that this conclusion fully reflected 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
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.
13.
In view of all the above and in light of the aforementioned well-established
jurisprudence, the members of the Dispute Resolution Chamber concluded that it
was the responsibility of the new club, i.e. the club W, to pay the relevant
proportion of solidarity contribution to the club T, which was involved in the
player’s training. Furthermore, and bearing in mind that the relevant proportion
of 5% solidarity contribution has to be deducted from the amount payable to the
player’s former club, the Intervening party would have to refund the same
proportion to the club W.
14.
After having confirmed the above-mentioned obligations incumbent on the
parties, the Chamber went on to establish the proper calculation of the relevant
proportion of solidarity contribution due to the club T.
15.
To that end, the Chamber referred to art. 1 of the Annexe 5 of the Regulations
which provides for the figures for the distribution of solidarity contribution, in
accordance with the period of time the player was effectively trained by a specific
club and taking into consideration the age of the player at the time he was being
trained and educated by the club(s) concerned.
16.
In this respect, the Chamber drew its attention to the fact that the Football
Federation D confirmed that the player concerned, born on 27 July 1989, had been
registered for the club T as from 15 August 1999 until 26 September 2005 and that
the relevant sporting seasons in the Football Federation D ran as from 1 July until
30 June of the following year.
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17.
The Chamber furthermore highlighted that according to art. 1 of Annexe 5 of the
Regulations, solidarity contribution is only due between the seasons of the
player’s 12th and 23th birthday. Therefore, the Chamber concluded that the
relevant period to be taken into consideration for the calculation of the amount
of solidarity contribution was as from 1 July 2001, the season of the player's 12th
birthday, until 26 September 2005.
18.
In light of the above, the Chamber decided that the period of training and
education to be taken into account corresponds to a total of four years and three
months.
19.
Consequently, the Chamber established that, in accordance with the breakdown
provided for in art. 1 of Annexe 5 of the Regulations and in accordance with the
club T’s prayer, the club T is basically entitled to receive 1,12% of the total transfer
compensation paid by the club W to the Intervening party in relation to the
transfer of the player.
20.
Based on all of the above, the members of the Dispute Resolution Chamber
unanimously concluded that the club W must pay to club T the total amount of
EUR 67,200 corresponding to 1,12% of the total transfer compensation of EUR
6,000,000, considering that the amount of EUR 60,000 was not meant to be part of
the actual total transfer compensation in view of the contents of the transfer
agreement, plus 5% of interest as of 1 March 2009. As a consequence, the
Chamber concluded that the claim of club T is partially accepted and that the
Intervening party had to reimburse the amount of EUR 67,200 to the club W.
21.
Finally, 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 training compensation costs in the maximum amount of 25,000
are levied. The costs are to be borne in consideration of the parties’ degree of
success in the proceedings.
22.
In this respect, the Chamber reiterated that the claim of the club T is partially
accepted. Therefore, the Respondent has to bear the costs of the current
proceedings in front of FIFA.
23.
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.
24.
The amount in dispute to be taken into consideration in the present
proceedings amounts to EUR 123,200 related to the initial claim of the club T.
Therefore, the Chamber concluded that the maximum amount of costs of the
proceedings corresponds to 20,000 (cf. table in Annexe A of the Procedural
Rules).
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25.
Considering that the case at hand allowed to be dealt with following a
reasonable procedure, 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.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of, the club T 1860 is partially accepted.
2.
The club W has to pay to the club T the amount of EUR 67,200, plus 5% of interest
as of 1 March 2009, within 30 days as from the date of notification of this
decision.
3.
Any further request of the club T is 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
for consideration and a formal decision.
5.
The final amount of costs of the proceedings in the amount of CHF 4,000 are to be
paid by the club W within 30 days of notification of the present decision to FIFA
to the following bank account with reference to case nr.:
UBS Zurich
Account number 366.677.01U (FIFA Players’ Status)
Clearing number 230
IBAN: CH27 0023 0230 3666 7701U
SWIFT: UBSWCHZH80A
6.
The Claimant, the club T, is directed to inform the club W 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.
7.
The club B has to reimburse the amount of EUR 67,200 to the club W within 30
days as from the date of notification of this decision.
8.
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
for consideration and a formal decision.
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9.
The club W is directed to inform the club 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.
*****
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
Markus Kattner
Deputy Secretary General
Encl. CAS directives
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