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 the claim presented by the
Football Federation B,
as Claimant
against the club
E,
as Respondent
regarding a dispute relating to the solidarity contribution in connection
with the transfer of the player C
I.
Facts of the case
1.
The Football Federation B (FFB; hereinafter: the Claimant) confirmed that the
player C (hereinafter: the player), born on 23 September 1982, was not registered
(“no record found”) with any of its affiliated clubs since the season of his 12th
birthday until 23 June 1996.
2.
The sporting season in the country B follows the calendar year.
3.
According to a written statement from the Football Federation E (FFE), the player
was registered with the club, E (hereinafter: the Respondent), on 22 August 2005.
4.
On 19 July 2007, the Claimant contacted FIFA requesting its proportion of the
solidarity contribution in connection with the transfer of the player from the club,
M, to the Respondent for the alleged amount of EUR 4,000,000.
5.
In particular, the Claimant claimed 0.62% of the total transfer compensation as
solidarity contribution, i.e. it requested the payment of EUR 24,800, for the period
comprehended between the season of the player’s 12th birthday and 23 June 1996.
6.
The Claimant referred to a decision of the Court of Arbitration for Sport (CAS),
according to which an association does not have to prove that the player was
trained during the period, where “no record” was found concerning the player. It
did therefore not provide FIFA with any documentary evidence providing that the
player was in the country B between 1 January 1994 and 23 June 1996 and that he
was trained in football in this period.
7.
In its position dated 19 October 2007, the Respondent confirmed that it had paid
EUR 4,000,000 as transfer compensation, but added that the last instalment
amounting to EUR 500,000 was payable until 10 August 2008. Consequently, the
solidarity contribution based on the last instalment was not owed yet. Therefore,
the Respondent agreed to pay EUR 21,700 to the Claimant and asked for its bank
details.
8.
On 23 August 2010, the Claimant informed FIFA that it had provided the
Respondent with its bank details.
9.
Later on, on 15 September 2010, the Claimant informed FIFA that the Respondent
refused to pay solidarity contribution, since its claim would allegedly be timebarred.
10.
In its final position, the Respondent clarified that the Claimant did not demand
solidarity contribution since 19 October 2007 and that therefore, in accordance
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with the FIFA Regulations on the Status and Transfer of Players, the right to
solidarity contribution was time-barred, since more than two years had elapsed.
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II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter: the DRC or the Chamber)
analysed whether it was competent to deal with the matter at stake. In this
respect, it referred to art. 18 of the Rules Governing the Procedures of the Players’
Status Committee and the Dispute Resolution Chamber (DRC; edition 2005) in
conjunction with art. 21 par. 2 and 3 of the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (edition 2008). The
present matter was submitted to FIFA on 19 July 2007. As a consequence, the
Chamber concluded that the 2005 edition of the Rules Governing the Procedures
of the Players’ Status Committee and the Dispute Resolution Chamber (DRC;
hereinafter: the Procedural Rules) are applicable on the matter at hand.
2.
With regard to the competence of the Chamber, art. 3 par. 1 of the Procedural
Rules states that the Dispute Resolution Chamber shall examine its jurisdiction in
the light of articles 22 to 24 of the Regulations on the Status and Transfer of
Players (edition 2010). In accordance with art. 1 par. 1 of the aforementioned
Regulations, which describes the scope of the relevant Regulations, in connection
with articles 24 par. 1 and 22 d) of said Regulations, 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 FFB, in connection with the international transfer of the
professional player, C.
3.
Furthermore, and taking into consideration that the player was registered for the
Respondent on 22 August 2005, the Chamber analysed which edition of the
Regulations on the Status and Transfer of Players 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 2010, 2009 and 2008), and also considering that the present claim was
lodged in front of FIFA on 19 July 2007, the previous edition of the Regulations for
the Status and Transfer of Players (hereinafter: the Regulations) is applicable to
the matter at hand as to the substance.
4.
In continuation, the Chamber duly noted that the Respondent was of the opinion
that the present claim should be viewed as time-barred, since more than two years
had allegedly elapsed.
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5.
In view of the above, the Chamber deemed fundamental to underline that in
order to determine whether it could hear the present case, it should, first and
foremost, establish which is the event giving rise to the dispute, i.e. which is the
starting point of the time period of two years set out under art. 25 par. 5 of the
Regulations. In this respect, the Chamber referred to art. 2 par. 1 of Annex 5 of
the Regulations, which stipulates that “The new club shall pay the solidarity
contribution to the training club(s) […] no later than 30 days after the player’s
registration or, in case of contingent payments, 30 days after the date of such
payments”.
6.
Reverting to the facts of the present case, the DRC emphasized that the player was
registered with the Respondent on 22 August 2005.
7.
On account of the foregoing, the Chamber unanimously decided that the event
giving rise to the dispute, regarding the payment of solidarity contribution
occurred 30 days after the player’s registration with the Respondent.
8.
Therefore, the members of the Chamber came to the firm conclusion that, in casu,
and in accordance with art. 2 par. 1 of Annex 5 of the Regulations, the payment of
the solidarity contribution fell due on 21 September 2005, i.e. 30 days after the
registration of the player at the FFE, and that this latter date was the starting
point of the time period of two years set out under art. 25 par. 5 of the
Regulations. Equally, the Chamber held that the time period of two years had
elapsed, in casu, on 21 September 2007.
9.
As a consequence, the Chamber concluded that less than two years had elapsed
between the event giving rise to the dispute, i.e. the due date of payment of the
solidarity contribution, which was on 21 September 2005, and the submission of
the present claim to FIFA by the Claimant on 19 July 2007, and that therefore, the
claim of the Claimant for solidarity contribution can be heard by the Dispute
Resolution Chamber.
10.
Thereafter, the DRC acknowledged that as established in art. 21 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 birthday.
11.
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.
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12.
The Chamber recapitulated that the aforementioned provision stipulates that if a
link between a professional player 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 player was
trained.
13.
On this basis, the members of 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 is a prerequisite contained in art.
2 par. 3 of Annex 5 of the Regulations.
14.
To that regard, the DRC stated that the transfer of the player from the club, M, to
the Respondent had taken place in August 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 took place, in casu, on 22 August 2005.
15.
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,
entitled to claim the relevant proportion of the 5% pertaining to the solidarity
contribution.
16.
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 the season of the player’s 12th birthday until 23 June 1996, no
record could be found with regard to the registration of the player.
17.
In view of the aforementioned, the DRC acknowledged that, as asserted by the
Claimant, no link could be established between the player and any of the clubs
affiliated to the FFB that allegedly trained him during the aforementioned period.
18.
Equally, the Chamber duly considered the arguments of the Claimant, referring to
a decision of the CAS according to which an association does not have to prove
that the player was trained during the “no record found” period.
19.
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).
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20.
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 the ratio
legis 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, training cannot be
compensated within the football structures.
21.
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
that the player had actually been trained in football during the relevant period of
time, if it intends to claim part of the solidarity contribution.
22.
The Chamber therefore added that if there are no records found with regard to
the registration of the player and no evidence is provided that the player was
clearly trained in football 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.
23.
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.
24.
On the basis of all these considerations, the DRC unanimously concluded that, also
in confirmation of its recent jurisprudence, the claim of the Claimant for the
solidarity contribution for the period from the season of the player’s 12th birthday
until 23 June 1996 must be rejected.
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III.
Decision of the Dispute Resolution Chamber
The claim of the Claimant, Football Federation B, is rejected.
*****
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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