Solidarity Contribution
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 17 August 2012,
in the following composition:
G (E), Chairman (did not take part in the deliberations)
Rinaldo Martorelli (Brazil), member
Jon Newman (USA), member
Zola Percival Majavu (South Africa), member
Theodoros Giannikos (Greece), member
on the claim presented by the club,
S,
as Claimant
against the club,
R,
as Respondent
regarding a solidarity contribution dispute
related to the transfer of the player J
I.
Facts of the case
1.
According to the SFF, the player J (hereinafter: the player J), born on xy.
Month 1983, was registered with the country S club S (hereinafter: the
Claimant) as from 3 March 1994 until 30 January 2004.
2.
According to the SFF, the sporting season in country S runs as from 1 July
until 30 June of the following year.
3.
4.
The SFF
confirmed that the player J was registered with its affiliated club R
(hereinafter: the Respondent) on 1 September 2006.
5.
On 27 February 2008, the Claimant lodged a claim in front of FIFA against the
Respondent, claiming its relevant share of solidarity contribution for the
transfer of the player J from the country E club A (hereinafter: club A) to the
Respondent. In particular, the Claimant claimed 65% out of the 5% share of
solidarity contribution.
6.
In support of its claim, the Claimant explained that the player J had
previously been transferred from the Claimant to club A for a transfer
compensation of EUR 22,500,000.
7.
Furthermore, the Claimant stated that the player J was then transferred from
club A to the Respondent in August 2006 on a loan basis for the season
2006/2007. The Claimant indicated that, based on the information it had at
disposal, there was no transfer compensation paid by the Respondent to club
A, but that the player J was exchanged with the player B (hereinafter: the
player B), which was transferred from the Respondent to club A.
8.
In this respect, the Claimant argued that the fact that no transfer
compensation was paid for the player J would not mean that this transfer did
not have an economic value. To decide otherwise, i.e. not to attribute an
economic value to such a transfer and not to apply the respective provisions
regarding solidarity contribution in case of an exchange of players would,
according to the Claimant, mean a circumvention of the solidarity mechanism
and this would create a means to distort said mechanism and to possibly
commit fraud.
9.
As to the calculation of the relevant solidarity contribution and the market
value of the transfer of the player J, the Claimant held that the best approach
was to base the calculation on the amount paid by club A to the Claimant for
the player J. The Claimant suggested to take into account said amount
proportionally, in accordance with the period of validity of the player J’
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contract with Club A after the transfer from the Claimant. This is, the
Claimant divided the transfer compensation of EUR 22,500,000 paid by club A
to the Claimant into the four and a half years of validity of the player J’
contract with club A to establish a value of EUR 5,000,000 for one year. Since
the loan of the player J from club A to the Respondent was concluded for
one year, the Claimant deemed the amount of EUR 5,000,000 to be the
relevant figure to calculate the solidarity contribution. Consequently, the
Claimant claimed payment of 65% out of the 5% share of solidarity
contribution based on said amount, i.e. an amount of EUR 162,500.
10.
Alternatively, the Claimant suggested that an adequate method of
calculation would be to take into account the gross annual salary and all the
compensation paid to the player B, since at least this amount would
represent what the Respondent had saved due to the transfer in question.
The Claimant also held that the calculation of this amount would have to be
done and clarified by the Respondent.
11.
The transfer agreement concluded between club A and the Respondent
contained the following relevant provisions:
“(…)
(C) Club R and club A wish to effect (i) the transfer of the registration
of player B to club A and (ii) the transfer of the registration of club
J to club R, in each case on the terms set out in this Agreement.
(…)
2.
Transfer compensation
2.1 Subject to the fulfilment of the Condition set out in clause 3.1 (A)
below, and in consideration for club R effecting the player B
Transfer, club A shall:
(A) effect the player J Transfer;
(B) pay to club R any amounts determined to be payable by club A to
club R pursuant to clause 2.3 (…); and
(C) pay to club R any amount determined to be payable by club A to
club R pursuant to clause 2.4.
2.2 Subject to the fulfilment of the Condition set out in clause 3.1 (B)
below, and in consideration for club A effecting the player J
Transfer, club R shall:
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(A) effect the player B Transfer;
(B) pay to club A any amounts determined to be payable by club R to
club A pursuant to clause 2.3 (…); and
(C) pay to club A any amount determined to be payable by club R to
club A pursuant to clause 2.4.
2.3 For the purpose of this clause 2.3:
’Player J’s Amount’ means the aggregate of (i) the gross cost to club R
of employing player J for the period from 1
September 2006 to 30 June 2007 pursuant to the
terms and conditions of the player J Employment
Contract and (ii) any training and development
compensation payable by club R pursuant to FIFA
Regulations in respect of the player B Transfer; and
‘Player B Amount’ means the aggregate of (i) the gross cost to club A
of employing player B for the period from 1
September 2006 to 30 June 2007 pursuant to terms
and conditions of the player B Employment Contract
and (ii) any training and development compensation
payable by club A pursuant to FIFA Regulations in
respect of the player J Transfer.
(A) If the player B Amount is greater than the player J Amount, then
club R shall pay to club A an amount equal to such difference.
(B) If the player J Amount is greater than the player B Amount, then
club A shall pay to club R an amount equal to such difference.
(C) If the player B Amount is equal to the player J Amount, then no
payments shall fall to be paid under this clause 2.3.
(…)
2.4 (A) Club A and club R agree to meet prior to 31 May 2007 to
negotiate in good faith:
(i) the transfer value of club B (the ‘Player B Value’); and
(ii)the transfer value of player J (the ‘Player J Value’).
The player B Value shall take into account any payment made by
club A under clause 2.3 above and shall not exceed EUR
20,000,000.
The player J Value shall take into account any payment made by
club R under clause 2.3 above and shall not exceed EUR 25,000,000.
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(…)”
12.
Furthermore, the Claimant referred to a DRC decision dated 12 January 2007
and alleged that said decision dealt with a case with similar characteristics,
the only difference being that said decision concerned a definitive transfer
and not a loan.
13.
In addition, the Claimant argued that, even if according to the jurisprudence
of the DRC payments to third parties should not be taken into account to
establish the solidarity payment due, the DRC had established that
reimbursements made to the club of origin of a player in a transfer, whether
they are monetary or non-monetary and whether the transfer was temporary
or permanent, had to be taken into account to calculate the relevant
solidarity contribution.
14.
The Claimant furthermore stated that the absence of a monetary reward
could only create a problem as regards the calculation of the solidarity
contribution, but it could not bring about the inexistence of solidarity
contribution.
15.
In this respect, the Claimant also invoked country S legislation, according to
which an exchange or trade-off had to be valuated according to the relevant
market value.
16.
In its response, the Respondent rejected the claim lodged against it and
stated that there was no transfer compensation paid for the player J to club
A. In this respect, the Respondent referred to art. 1 of Annexe 5 of the FIFA
Regulations on the Status and Transfer of Players (hereinafter: the
Regulations), according to which 5% of any compensation paid to a player’s
former club has to be distributed as solidarity contribution. Equally, the
Respondent referred to the commentary to said provision, according to which
solidarity contribution was due whenever a player’s new club pays transfer
compensation.
17.
Consequently, and since there had been no such compensation, and since,
therefore, the transfer of the player R had no economic value, the
Respondent held that no solidarity contribution was due.
18.
In support of its position, the Respondent held that there had already been
numerous decisions of the DRC which indicated that solidarity contribution
was only applicable if a transfer compensation is paid for a player. In
particular, the Respondent referred to a decision dated 22 June 2007 in which
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the DRC allegedly considered that the Claimant carried the burden of proof
as regards the alleged payment of a transfer compensation.
19.
Furthermore, the Respondent rejected that there had been an exchange
between the players J and B. The Respondent argued that, even if the loans
of both players coincided in time, there was no intention of the parties that
there should be an exchange of these players. The Respondent explained that
it had loaned the player B to club A without payment of a loan fee because,
at the time, there was no availability in its team for a non-European player.
Equally, according to the Respondent, club A allegedly wanted the player J to
participate in another team for sporting reasons.
20.
In addition, the Respondent argued that it allegedly completed numerous
transactions of this kind, i.e. loan agreements without the payment of a loan
fee concluded for sporting reasons, and referred to various examples.
21.
Equally, the Respondent rejected that the salary paid to a player could serve
as a basis for the calculation of the solidarity contribution.
22.
Subsidiarily, the Respondent acknowledged that the agreement concluded
between the Respondent and club A provided for a balancing payment in
case that the salary of the player J (paid by the Respondent) and the player B
(paid by club A) would not amount to the same sums. In this respect, the
Respondent explained that since the player B had a higher salary than the
player J, the Respondent had paid to club A an amount of 1,090,400,
equalling the difference in salaries.
23.
Therefore, according to the Respondent, this would be the only amount upon
which solidarity contribution could be calculated, if any solidarity
contribution was due.
24.
Furthermore, the Respondent stated that, in case it had to pay any amount as
solidarity contribution, club A should be obliged to reimburse it accordingly,
since the Respondent had made full payment of the aforementioned amount
to club A, i.e. without deducting the relevant share of solidarity contribution.
25.
In its reply thereto, the Claimant reiterated its previous statements.
26.
Upon being invited to submit its position pertaining to the matter at hand,
club A stated that according to the FIFA Regulations, the Respondent was the
club responsible for the payment of solidarity contribution, since the latter
was the “buying club”. Therefore, club A held that the Claimant has no
standing to make any claim against club A.
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27.
Furthermore, club A argued that there was no transfer compensation or loan
fee payable, or paid, by the Respondent to club A in respect of the player J or
paid by club A to the Respondent in respect of the player B. Therefore,
according to club A, no solidarity contribution was payable.
28.
Moreover, club A stated that the two transfers were included in the same
agreement for practical reasons only.
29.
Equally, club A argued that the DRC decision dated 12 January 2007 was not
comparable to the situation at hand, since the nature of the transfer in the
aforementioned case was a “player swap”, whereas in the case of the players
J and B there was no swap.
30.
Finally, club A explained that the Respondent made a payment to club A of
1,090,400 to reflect the fact that the salary of the player B was greater than
the salary of the player J. Therefore, if the DRC should consider that solidarity
contribution was payable, only the aforementioned amount could serve as a
basis of the relevant calculation.
31.
In its final comments, the Respondent reiterated its previous position and
ascertained that there was no “double transfer” of the players J and B (i.e. no
exchange), but two transfers, each without payment of transfer
compensation.
32.
Club A, in its final comments, confirmed the latest position of the Respondent
and also referred to its own previous statements.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as
Chamber or DRC) analysed whether it was competent to deal with the case at
hand. In this respect, the Chamber took note that the present matter was
submitted to FIFA on 27 February 2008. Consequently, the 2005 edition of the
Rules Governing the Procedures of the Players’ Status Committee and the
Dispute Resolution Chamber (hereinafter: Procedural Rules) are applicable to
the matter at hand (cf. art. 18 par. 2 and par. 3 of the Procedural Rules).
2.
Subsequently, the DRC referred to art. 3 par. 1 of the Procedural Rules and
confirmed that in accordance with art. 24 par. 1 in conjunction with art. 22 lit.
d) of the Regulations on the Status and Transfer of Players (edition 2010) the
Chamber is competent to deal with the matter at stake with an international
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dimension concerning the distribution of the solidarity contribution claimed
by the Claimant from the Respondent in connection with an international
transfer of a player.
3.
In this respect, the Chamber was eager to point out that contrary to the
information contained in FIFA’s letter dated 10 August 2012 by means of
which the parties were informed of the composition of the Chamber, the
Chairman G refrained from participating in the deliberations due to the fact
that he has the same nationality as a party involved in the present matter, i.e.
club A. Therefore, the Chamber adjudicated in the presence of four members,
two club representatives and two player representatives.
4.
Furthermore, the Chamber analysed which regulations should be applicable
as to the substance of the matter. In this respect, the Chamber confirmed that
in accordance with art. 26 par. 1 and par. 2 of the Regulations on the Status
and Transfer of Players (editions 2008, 2009 and 2010) and considering that
the present claim was lodged on 27 February 2008 as well as that the player
was registered with his new club on 1 September 2006, the 2005 edition of
said Regulations (hereinafter: Regulations) is applicable to the present matter
as to the substance.
5.
In continuation, and entering into the substance of the matter, the DRC
started by acknowledging that the loan agreement concluded between club
A and the Respondent provided the exchange of the player B, who was
registered with the Respondent, for the player J, who was registered with
club A. Hence, the loan agreement did not mention any specific amount as
loan compensation to be paid for the loan of the player J, but that instead an
exchange with the player B had been agreed upon between club A and the
Respondent.
6.
What is more, the Chamber observed that the Claimant asserted that it was
entitled to receive solidarity contribution since the exchange of players did
undoubtedly have an economic value. To deny such economic value would,
according to the Claimant, result in the circumvention of the solidarity
mechanism, which consequently would lead to the distortion of said
mechanism.
7.
Equally, the Chamber took note of the position of the Respondent, which was
of the opinion that no solidarity contribution was due to the Claimant in view
of the fact that there had been no compensation paid by the Respondent to
club A in relation to the transfer of the player J. Furthermore, the
Respondent argued that there was no intention of the parties to exchange
the players; the Respondent had merely loaned the player B to club A
without the payment of a loan fee, since it had no place left for a non8/13
European player, whereas club A wished that the player J would particpate in
another team for sporting reasons.
8.
With due consideration to the above, the Chamber first referred to art. 21
and Annex 5 of the Regulations, which stipulates that, as a general rule, the
solidarity contribution corresponds to 5% of any compensation, with the
exception of training compensation, paid by the new club to the former club.
What is more, the Chamber referred to the second sentence of art. 10 of the
Regulations, which, in relation to the loan of players, outlines that a loan is
subject to the same rules as apply to the transfer of players, including the
provisions on training compensation and the solidarity mechanism. In this
context, the Chamber stressed that, in principle, art. 21 and Annex 5 of the
Regulations are also applicable to loan transfers.
9.
Having established the above, the Chamber outlined that, as a general
principle, any transfer agreement, including a loan agreement, represents a
bilateral agreement, which implies a mutual exchange of obligations
between the parties involved. In the matter at hand, by means of the signing
of the loan agreement, the parties agreed upon a mutual exchange of
obligations, whereby no loan compensation payment was specified, but in
which two players were exchanged. Yet, the Chamber concluded that the
present exchange of players implied indirectly a financial agreement, i.e. an
agreement with a monetary component, due to the fact that the relevant
qualities of the players have an economic value in the football employment
market.
10.
In connection with the preceding consideration, the Chamber referred to art.
1 of Annex 5 of the Regulations, and more specifically to the interpretation
to be given to said article and to the solidarity mechanism in general. In this
respect, the Chamber remarked that the aforementioned article should be
interpreted according to its overall aim and primary purpose. In this respect,
the Chamber underlined that the solidarity mechanism is meant to foster the
training of young players by awarding a contribution that will be distributed
to all clubs that have trained the player between the seasons of the player’s
12th and 23rd birthday.
11.
In light of the aforementioned, the Chamber was of the unanimous opinion
that the provisions regarding the solidarity mechanism also apply whenever
there is an exchange of players, regardless from whether such exchange is on
a temporary or permanent basis, and that, thus, the provisions regarding the
solidarity mechanism cannot be circumvented by means of an exchange of
players. With other words, the Chamber was of the opinion that in order to
obtain the player J, the Respondent “paid” club A with the player B.
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12.
In view of the above, the Chamber decided that the Claimant is entitled to
receive solidarity contribution in connection with the exchange of the players
on a loan basis.
13.
In continuation, the members of the Chamber underlined that the next issue
of the present matter was to establish the value of the amount of money
indirectly agreed upon between the parties for the exchange of players, in
the current matter, for the loan of the player R. Thus, the Chamber had to
establish the most appropriate value in order to calculate the relevant
solidarity contribution.
14.
In this context, the Chamber reiterated that in exchange for the loan of the
player J from club A to the Respondent, the latter had “paid” club A with the
player B. Hence, the Chamber stressed that it had to determine the market
value of the player B, since the player B has to be considered as the
“compensation paid” for the loan of the player J from club A to the
Respondent.
15.
In this respect and in order to determine the market value of the player B, the
Chamber considered all the relevant elements in the present matter. The
Chamber noted that the player J had been previously transferred from the
Claimant to club A for a transfer compensation amounting to EUR 22,500,000,
whereas the player B had been previously transferred from the Claimant to
the Respondent for a transfer compensation amounting to EUR 24,500,000,
including contingent payments. Consequently, the Chamber determined that
to establish the basis for the assessed transfer value of the player B, it should
take into account the transfer compensation paid by the Respondent to the
Claimant for the transfer of the player B, i.e. EUR 24,500,000.
16.
The Chamber further took note that upon signing the player B, the
Respondent and the player had concluded an employment contract for the
duration of 5 years.
17.
In continuation, and establishing the compensation on a pro rata basis, the
Chamber concluded that the amount of EUR 24,500,000 should be divided by
5 years and that, thus, the starting point in order to determine the most
appropriate value in order to calculate the relevant solidarity contribution
shall be calculated on the basis of the assessed transfer compensation of EUR
4,900,000 (EUR 24,500,000 / 5 = EUR 4,900,000).
18.
Having established the above, the Chamber deemed that the amount of EUR
4,900,000 should be further reduced, considering that the present matter
concerns a transfer on a loan basis and not a transfer on a permanent basis
and that, thus, the player returned to his club of origin after expiry of the
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loan period. Therefore, the Chamber deemed it appropriate to further reduce
the assessed transfer compensation with 40%, which results in the amount of
EUR 2,940,000 (EUR 4,900,000 - 40% = EUR 2,940,000).
19.
What is more, the Chamber also considered that the additional amount paid
by the Respondent to club A should be taken into account when calculating
the amount due as solidarity contribution. In this respect, the Chamber
decided that the amount of 1,090,400 had to be added to the EUR 2,940,000,
which cumulates in the total amount of EUR 4,240,000.
20.
In view of the foregoing and considering all the elements of the present
matter, the Chamber concurred that the amount of EUR 4,240,000 is to be
deemed as the most appropriate value in order to calculate the relevant
solidarity contribution in the present matter.
21.
Having established the amount to serve as the basis for the calculation of the
solidarity contribution, the Chamber referred once more to art. 21 in
connection with Annex 5 of the Regulations, according to which the new club
of the player shall distribute 5% of the relevant compensation as solidarity
contribution to the club(s) involved in the training and education of the
player, reflecting the number of years the player was registered with the
relevant club(s) between the seasons of his 12th and 23rd birthdays.
22.
In this respect, the Chamber recalled that the S Football Federation had
confirmed that the player, born on xy. Month 1983, was registered with the
Claimant as from 3 March 1994 until 30 January 2004.
23.
As a result, the Chamber decided that in accordance with the breakdown
provided for in art. 1 of Annex 5 of the Regulations as well as taking into
account the percentage claimed by the Claimant, the Claimant is entitled to
receive 65% of 5% of EUR EUR 4,240,000 as solidarity contribution from the
Respondent.
24.
In view of all the above, the Chamber concluded that the Respondent has to
pay to the Claimant a solidarity contribution of EUR 137,800 for the transfer
of the player from club A to the Respondent.
25.
In addition, the Dispute Resolution Chamber decided that any further claims
lodged by the Claimant are rejected.
*****
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III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, club S, is partially accepted.
2.
The Respondent, R has to pay to the Claimant, S, the amount of EUR 137,800
within 30 days as of notification of the present decision.
3.
If the aforementioned sum plus interest is not paid within the stated time limit,
interest at a rate of 5 % p.a. will apply as of expiry of the stipulated time-limit,
and the present matter shall be submitted, upon request, to FIFA’s Disciplinary
Committee for consideration and a formal decision.
4.
Any further claims lodged by the Claimant, S, are rejected.
5.
The Claimant, S, is directed to inform the Respondent, R, 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. 67 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
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Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
________________________
Markus Kattner
Deputy Secretary General
Enclosed: CAS directives
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