Solidarity Contribution
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 10 August 2011,
in the following composition:
Geoff Thompson (England), Chairman
Philippe Piat (France), member
Jon Newman (USA), member
Theodoros Giannikos (Greece), member
Thilina Panditaratne (Sri Lanka), member
on a matter between the club
FC X,
and the club
Y,
and involving the club
FC Z,
as Intervening party
I.
regarding a dispute relating to the solidarity contribution
in connection with the transfer of the player G
Facts of the case
1.
The country A player, G (hereinafter: the player), was born on 14 October 1985.
2.
According to the player passport produced by the Football Association A (FAA) on
16 February 2011, the player was registered with the country A club, FC X
(hereinafter: FC X), as an amateur since 14 March 2003 and as a professional from
4 November 2004 until 23 January 2008, i.e. between the ages of 17 and 22.
3.
The sporting season in country A runs as follows: a) for amateurs (under 20 years
of age) from January to December of the relevant year and b) for amateurs (more
than 20 years of age) and professionals from 1 July until 30 June of the following
year.
4.
On 13 July 2007, the country S club, FC Z (hereinafter: FC Z), and the player signed
an employment contract, the validity of which had been stipulated for the period
from 1 January 2008 until 30 June 2012.
5.
Two days later, i.e. on 15 July 2007, FC X and FC Z concluded a contract regarding
the transfer of the player from FC X to FC Z for a total compensation of USD
1,400,000 to be paid as follows:
a)
USD 500,000 due at the signature of the contract;
b)
USD 500,000 due on 30 September 2007;
c)
USD 500,000 due on 30 December 2007 (cf. third clause of said transfer
contract).
6.
The parties equally concluded that the fees to be paid for the solidarity
mechanism as a consequence of the registration of the player should be paid by FC
Z (cf. fourth clause of the aforementioned transfer contract).
7.
On 7 February 2008, the country A club, Club Y (hereinafter: Y) and FC Z signed an
agreement regarding the loan of the player from the latter club to Club Y – free
of any payment, but including a buying option – for a period lasting from the date
of the signature until 30 June 2008, either until the finalisation of the official
Football Association Tournament or of the Official Tournament, in which Club Y
would participate (cf. second clause of this loan agreement).
In accordance with the third clause of the aforementioned agreement, Club Y
could decide – until 31 May 2008 – to acquire definitively the totality (100%) of
the “federative and economic rights” of the player, for the total and definitive
price of USD 3,000,000 net, payable as follows:
8.
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a.
USD 500,000 on 15 July 2008;
b.
USD 500,000 on 15 September 2008;
c.
USD 500,000 on 30 June 2009;
d.
USD 500,000 on 30 August 2009;
e.
USD 500,000 on 30 October 2009;
f.
USD 500,000 on 28 February 2010.
9.
The transfer fee to be paid by Club Y, in accordance with the third clause of said
agreement, included the payment of the solidarity mechanism, to which the
former training clubs of the player would be entitled to, due to this transfer, FC Z
having to carry the expenses of the payment and distribution of the solidarity
contribution, that could be claimed by third clubs (cf. eighth clause of the loan
agreement).
10.
The Football Federation S (FFS) confirmed later on that the player was registered
as a professional for its affiliated club, FC Z, during one day (i.e. on 7 February
2008), after an incoming international transfer from country A and before being
transferred back to country A on the next day, i.e. on 8 February 2008.
11.
The Football Association A further informed FIFA that the player was subsequently
registered for Club Y from 8 February 2008 until 30 June 2011.
12.
On 30 June 2009, FC X lodged a formal claim before FIFA against Club Y,
requesting, inter alia, the payment of the solidarity contribution in the amount of
USD 67,500 plus interest in connection with the transfer of the player from FC Z to
Club Y. FC X stated in particular that since the player was allegedly trained by
them for the period from January 1997 until December 2007 (hence, since the
season of the player’s 12th birthday until the season of his 22nd birthday), Club Y
would have to pay a proportion of 4.5% of the total value of the transfer
compensation.
Furthermore, FC X also asserted that pursuant to several mass media, the player
was transferred to Club Y for the amount of USD 1,500,000 being – according to
them - equivalent to 50% of the “economic rights” of the player. Moreover, FC X
reserved its right to amplify the amount of its claim, in case Club Y would acquire
the remaining 50 % of the player’s “economic rights”.
13.
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14.
On 24 July 2009, FC X amended its claim, requesting also to be reimbursed the
amount paid as advance of costs, and to impose on Club Y to pay an equal
amount as costs of the proceedings.
15.
In its reply, Club Y started by rejecting the claim, alleging in particular the
inexistence of any transfer between FC X and FC Z, and, posteriorly, between the
latter FC Z and Club Y, but merely stated that it was one single transfer between
FC X and Club Y; in other words, FC Z simply acted as an “investor” in the
“economic rights” of the player acquired from FC X. Consequently, since the
transfer took place between FC X and Club Y (which are two clubs belonging to
the same association), it does, in casu, not correspond to the transfer based on
which FC X claims its entitlement to solidarity contribution.
16.
Club Y further specified, first of all, that the contract concluded between FC X and
FC Z was not a contract for the transfer of the player, but rather a contract of
assignment of the “federative rights”, a mere financing tool. In this respect, Club
Y asserted that, as it clearly arises from the clauses of said agreement, the player
did not sign any employment contract with FC Z, but maintained his [employment]
contract with FC X. Equally, the player allegedly neither integrated the squad of
FC Z, nor travelled to country S. Consequently, FC X would in casu not be entitled
to receive any solidarity contribution.
17.
With respect to the player’s employment contract with FC X, Club Y repeated that
this one was only terminated by mutual agreement once the player had signed a
new employment contract with them. Between those two employment contracts,
no additional employment contract ever existed with FC Z or with any other club.
18.
Moreover, in the contract of assignment of the “economic rights” concluded
between FC X and FC Z, it was agreed that the latter club would take charge of
the public dues, which included the solidarity contribution (cf. fourth clause of
said contract), and that said charges would be paid by FC Z within five days after
the I[nternational] T[ransfer] C[ertificate] (hereinafter: ITC) request.
19.
Both in the contract between FC Z and FC X as well as in the contract between FC
Z and Club Y, the solidarity contribution that would be due should be paid by FC
Z.
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20.
Subsidiary and only on the supposition that FIFA would establish that a “real”
transfer of the player from FC Z to Club Y happened, which would cause the
payment of the claimed solidarity contribution, then FC Z should also be
integrated in this matter. In this respect, Club Y referred to the eighth clause of
the agreement. Therefore, FC Z – and not Club Y – should be considered as the
possible obligor. According to Club Y, it was in this spirit that the jurisprudence of
the CAS has allegedly already allowed this type of financial agreements for
transfers realised in accordance with the (2005 edition of the) Regulations for the
Status and Transfer of Players, more concretely in the arbitral award of the Court
of Arbitration for Sport (CAS) with reference CAS 2008/X/XXXX – Club M v/ Club
Q.
21.
By means of its replica, FC X increased its claim to the amount of USD 135,000 plus
the interest due until the moment of the effective payment, since it had expressly
reserved its right to amend its claim (cf. point I.12. et seq.), in case Club Y would
acquire the remaining 50 % of the “economic rights” – fact which was allegedly
confessed by Club Y in its reply.
22.
Furthermore, FC X also declared in said replica to be surprised by the contents of
Club Y’s reply, when the latter club pretends to be in the presence of a “direct
transfer” of the player from FC X to them, without bringing any evidence to their
allegations. Beyond the problematic of the terminology, it is evident for FC X to
be in the presence of a transfer contract in the matter at stake. It is for this reason
that the Football Association A sent the pertinent ITC to the Football Federation S
in favour of FC Z. Contrary to what Club Y manifests without any certainty, there
is no point of connection between this transfer agreement and the one that was
posteriorly concluded by Club Y with FC Z. Moreover, FC X stated that the relevant
amount of solidarity contribution is only due by Club Y.
23.
In its rejoinder, Club Y adhered to its previous statement, reminding in particular
that in the contract concluded between them and FC Z, it was provided in its
eighth clause that the payment of the solidarity contribution would be at the
expenses of FC Z (cf. point I.9. above). It further requested in particular that FC Z
should be integrated in the present dispute to expose its position and defence,
and that the solidarity contribution should be calculated on a basis amount of USD
949,000.
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24.
In their position, FC Z stated that it is uncontroversial that the player’s new club
(i.e. Club Y) shall retain 5% of the transfer compensation to pass on as
contribution to the player’s former club (i.e. FC X). Thus, Club Y, as the “new
club”, shall be deemed responsible for the distribution of the solidarity
contribution, in spite of any contractual relationship between FC Z and Club Y. In
light of the above, FC Z rejected any claim against them.
*****
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 30 June 2009. 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. 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 e) of the Regulations on the Status and Transfer of
Players (edition 2010), 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 FC X, in connection with the alleged
transfer of the professional player, G, during the course of a contract, from the
country S club, FC Z, to the Club Y.
3.
Furthermore, and taking into consideration that the player was registered with his
new club, i.e. Club Y, on 8 February 2008, 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 2010), and also considering that the claim
was lodged on 30 June 2009, the 2008 edition of the regulations (hereinafter: the
Regulations) is applicable to the matter at hand as to the substance.
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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 FC X had lodged a formal
complaint at FIFA against Club Y, requesting the payment of the solidarity
contribution for the period of 11 sporting seasons, during which the player was
allegedly registered between the ages of 11 and 22; this is, the Chamber took due
note that after having amended its claim, FC X requested from Club Y the
payment of 4.5% of the total compensation contractually agreed upon between
the latter club and FC Z, thus the amount of USD 135,000 plus interest on said
amount until the date of the effective payment.
5.
In continuation, the Chamber duly noted that Club Y firstly asserted the
inexistence of any transfer between FC Z and Club Y, and, subsequently, requested
the intervention of FC Z in this dispute. Club Y alleged in particular that the
contract concluded between FC X and FC Z was not a contract for the transfer of
the player, but rather a contract of assignment of the “federative rights”, a mere
financing tool. Furthermore, Club Y asserted that, as it clearly arises from the
clauses of said agreement, the player did not sign any employment contract with
FC Z, but maintained his [employment] contract with FC X. Equally, the player
allegedly neither integrated the squad of FC Z, nor travelled to country S.
Moreover, with respect to the employment contract of the player with FC X, Club
Y repeated that this one was only terminated by mutual agreement once the
player had signed a new employment contract with them. Between those two
employment contracts, no additional employment contract ever existed with FC Z
or with any other club.
6.
With regard to the argument brought forward by Club Y, according to which
there was no transfer between FC Z and Club Y, the Dispute Resolution Chamber
emphasised that there was firstly an International Transfer Certificate (hereinafter:
ITC) issued by the Football Association A (FAA) in favour of the Football
Federation S (FFS) and, secondly, an ITC issued by the Football Federation S to the
Football Association A on 8 February 2008, i.e. that there was a clear move of the
registration of the player from the Football Association A to the Football
Federation S and back. Furthermore, the Chamber also highlighted the fact that
there were two clear and distinct agreements signed, one for the international
move of the player from FC X to FC Z and one for his other international move
from FC Z to Club Y. Moreover, the DRC stressed that it is uncontested that some
payments were apparently made in accordance with the contract between FC Z
and Club Y. Therefore, the Dispute Resolution Chamber concluded that the player
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was undoubtedly transferred from FC Z to Club Y and that a transfer agreement
was undoubtedly signed between those two parties.
7.
Furthermore, the Chamber also took due note of Club Y’s allegation, according to
which, in the contract of assignment of “economic rights” concluded between FC
X and FC Z, it was agreed that the latter club would take charge of the public
dues, which included the solidarity contribution (cf. fourth clause of said contract),
and that said charges would be paid by FC Z within five days after the ITC request.
8.
In this respect, the DRC reiterated that there were two distinct transfer
agreements for both international moves of the player, but that the pertinent
contractual basis of FC X’s claim for solidarity contribution was the transfer
agreement between Club Y and FC Z, and that this very specific contract stipulated
a transfer fee of USD 3,000,000 net (emphasis added) without providing for any
payment of public charges.
9.
In this context, the Dispute Resolution Chamber analysed deeper the contents of
the agreement concluded by Club Y with FC Z and duly noted that said agreement
stipulated that the loan was free of charge. However, the members of the
Chamber turned their attention to the second clause of the relevant agreement,
according to which Club Y had a buying option – to be exercised until 31 May
2008 – for the definitive acquisition of the totality of the “federative and
economic rights” of the player amounting to the total sum of USD 3,000,000 net,
payable in six equal instalments falling due on different dates.
10.
Since the Football Association A confirmed that the player was registered with
Club Y from 8 February 2008 until 30 June 2011, the Chamber concluded that Club
Y had obviously made use of said buying option.
11.
With regard to the arrangement contained in the third clause of the relevant
agreement, the Dispute Resolution Chamber first of all deemed fundamental to
emphasise that that the concept of the so-called “federative rights” or “economic
rights” of players has ceased to exist as of 1 September 2001, date of the coming
into effect of the revised FIFA Regulations for the Status and Transfer of Players. In
this regard, the Chamber also deemed important to emphasise that said provision
was not amended in any way in the revised edition of the Regulations on
(emphasis added) the Status and Transfer of Players (edition 2008).
12.
After examining the eighth clause of the agreement signed between Club Y and
FC Z, the Chamber considered that notwithstanding the argumentation put
forward by Club Y, said provision of the contract does not lead to the conclusion
that FC Z should pay the relevant proportion of the 5% solidarity contribution to
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13.
the club(s), which trained the player. Rather, the Chamber deemed it appropriate
to point out that the content of said clause is in contradiction to art. 21 and
Annexe 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, these provisions of the Regulations are
mandatory and their implementation shall not be affected by clubs involved in a
player’s transfer agreeing upon other terms.
On account of the above, the Chamber then referred to its longstanding and
constant 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 Annexe 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.
14.
As a result, and in application of said well-established jurisprudence, the Dispute
Resolution Chamber decided that the argumentation put forward by Club Y in its
defence could not be upheld.
15.
The Chamber then referred to art. 1 of Annexe 5 to 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.
Furthermore, the Chamber recalled that the solidarity contribution shall reflect
the number of years (calculated “pro rata temporis” if less than one year) he was
registered with the relevant club(s) between the seasons of his 12th and 23rd
birthdays.
16.
In this regard, the Chamber outlined that the period to be taken into
consideration (period of registration of the player with FC X) had to be
determined according to the confirmation issued by the Football Association A. In
this respect, the Chamber acknowledged that the player was registered for FC X
from 14 March 2003 until 23 January 2008. Consequently, the Chamber decided
that FC X was entitled to receive solidarity contribution for 10 months of the
season of the player’s 18th birthday (2003), for the entire seasons of the player’s
19th birthday (season 2004/2005, since the player turned professional on
4 November 2004) to his 21st birthday (2006/2007), and for 7 months of the season
of the player’s 22nd birthday (2007/2008). Therefore, the Chamber concluded that
the period of effective training to be taken into account corresponds to four
sporting seasons and 5 months.
17.
In view of the above, the Chamber established that, in accordance with the
breakdown provided for in art. 1 of Annexe 5 to the Regulations, FC X is entitled
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to receive 44.16 % of the 5% of the compensation paid in relation to the transfer
of the player from FC Z to Club Y.
18.
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 3,000,000
payable in six equal contingent payments of USD 500,000.
19.
Moreover, the Chamber referred to art. 2 par. 1 of Annexe 5 of the Regulations,
according to which the new club shall pay solidarity contribution no later than 30
days after the date of each contingent payment (in casu, 15 July 2008, 15
September 2008, 30 June 2009, 30 August 2009, 30 October 2009 and 28 February
2010). In accordance with said provision, the Chamber decided that FC X should be
awarded the claimed default interest at a rate of 5% per annum as from the 31st
day after the date on which the instalments foreseen by the contract between
Club Y and FC Z fell due, i.e. on 15 August 2008, 16 October 2008, 31 July 2009, 30
September 2009, 30 November 2009 and on 31 March 2010.
20.
Based on all of the above, the Dispute Resolution Chamber decided that Club Y
has to pay to FC X the amount of USD 66,240 plus 5% default interest per annum
on said amount until the date of effective payment as follows: 5% per annum as
of 15 August 2008 on the amount of USD 11,040; 5% per annum as of 16 October
2008 on the amount of USD 11,040; 5% per annum as of 31 July 2009 on the
amount of USD 11,040; 5% per annum as of 30 September 2009 on the amount of
USD 11,040; 5% per annum as of 30 November 2009 on the amount of USD
11,040; and 5% per annum as of 31 March 2010 on the amount of USD 11,040.
21.
Finally, the Chamber, referring once again to its constant jurisprudence, also
decided that FC Z has to reimburse the amount of USD 66,240 to Club Y.
22.
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.
23.
In this respect, the Chamber reiterated that the claim of FC X is partially, but
mainly accepted. Therefore, Club Y has to bear the costs of the current
proceedings in front of FIFA.
24.
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.
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25.
The amount in dispute to be taken into consideration in the present proceedings
amounts to USD 135,000 related to the amended claim of FC X (as amended on 31
May 2010; cf. point I./21. above). Therefore, the Chamber concluded that the
maximum amount of costs of the proceedings corresponds to CHF 20,000 (cf. table
in Annexe A).
26.
Considering that the matter at hand allowed to be dealt with following a special
procedure (two exchange of correspondence and the involvement of an
intervening party), that the matter was adjudicated by the Chamber, that the
present case showed particular factual difficulty and that it involved a certain
degree of legal complexity, the Chamber determined the final amount of costs of
the current proceedings to the amount of CHF 10,000.
27.
In this respect, the Chamber took into account that FC X had paid an advance of
costs in the amount of CHF 2,000 in accordance with art. 17 of the Procedural
Rules.
28.
In view of all of the above, the Chamber concluded that the amount of CHF 10,000
has to be paid by Club Y to cover the costs of the present proceedings. Thereof,
the amount of CHF 8,000 has to be paid by Club Y to FIFA and the amount of CHF
2,000 to FC X.
*****
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III.
Decision of the Dispute Resolution Chamber
1.
The claim of the club, FC X, is partially accepted.
2.
The Club Y has to pay to FC X, within 30 days as from the date of notification of
this decision, the sum of USD 66,240, plus interest at the rate of 5% per annum
until the effective date of effective payment as follows:
5% per annum as of 15 August 2008 on the amount of USD 11,040;
5% per annum as of 16 October 2008 on the amount of USD 11,040;
5% per annum as of 31 July 2009 on the amount of USD 11,040;
5% per annum as of 30 September 2009 on the amount of USD 11,040;
5% per annum as of 30 November 2009 on the amount of USD 11,040;
5% per annum as of 31 March 2010 on the amount of USD 11,040.
3.
The FC X, is directed to inform the country A club, Club Y 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.
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 its consideration and a formal decision.
5.
Any further request lodged by the FC X, is rejected.
6.
The Intervening party, Football Club FC Z, has to reimburse the amount of EUR
66,240 to the Club Y, within 30 days as from the date of notification of this
decision.
7.
The country A club, Club Y is directed to inform the Intervening party, Football
Club FC Z, 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.
8.
If the aforementioned amount 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 its consideration and a formal decision.
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9.
The final amount of costs of the proceedings in the amount of CHF 10,000 are to
be paid by the Club Y, within 30 days of notification of the present decision as
follows:
9.1.
The amount of CHF 8,000 to FIFA to the following bank account with
reference to case no.:
UBS Zurich
Account number 366.677.01U (FIFA Players’ Status)
Clearing number 230
IBAN: CH27 0023 0230 3666 7701U
SWIFT: UBSWCHZH80A
9.2.
The amount of CHF 2,000 to the club, FC X.
*****
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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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