Solidarity Contribution
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 17 August 2006,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Jean-Marie Philips (Belgium), member
Zola Majavu (South Africa), member
Rinaldo Martorelli (Brazil), member
Mick Mc Guire (England), member
on the claim presented by
the club, X,
as Claimant
against
the club, Y,
as Respondent
regarding the solidarity contribution related to the transfer of the player
Z.
./…
I.
Facts of the case
1.
According to the player passport issued by the Football Association of the club X,
the player Z, born on 27 January 1975, was registered as follows with the
Claimant:
- 25 February 1994 to 30 June 1994, i.e. for 4 months at the age of 19, loaned as
an amateur player,
- 31 January 1995 to 30 June 1995, i.e. for 5 months at the age of 20, loaned as an
amateur player,
- 1 January 1996 to 4 March 1996 as well as from 16 July 1996 to 4 January 1997,
i.e. for approximately 7 months at the age of 21 as a non-amateur player.
In total, the player was therefore registered with the Claimant for approximately
16 months.
2.
Based on article 25 of the Regulations for the Status and Transfer of Players (2001
edition), the Claimant is claiming a solidarity contribution for a period of 16
months. This claim was lodged with FIFA on 5 September 2005.
3.
In August 2003, the player Z was transferred from the club A to the Respondent
for the sum of USD 1,300,000.
4.
According to a letter of the Football Federation of the club Y, the player Z was
registered for the Respondent on 15 August 2003.
5.
Despite several requests either to pay to the Claimant any sum that may be due as
solidarity contribution, or to present reasons for a possible refusal, the
Respondent initially made no statement to FIFA. The Claimant, meanwhile, stated
that it could not determine how much money it was owed, as it did not know
how much the club A had received for the player’s transfer. Finally, in a letter
dated 16 January 2006 and in response to FIFA’s request for a copy of the transfer
contract with the club A, the Respondent informed FIFA that it had been unable
to locate the transfer contract concluded with the club A due to a recent
reorganisation of its club in 2005.
6.
On 14 February 2006, the Claimant stated that according to press reports, the
Respondent had paid the club A the sum of USD 3,000,000 for the player’s
transfer.
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Club X / Club Y, player Z
7.
On 7 March 2006, the club Y stated that it did not have any written
documentation that could confirm the Claimant’s complaint regarding a transfer
compensation of USD 3,000,000.
8.
In a letter dated 6 April 2006, the Respondent reiterated that it could neither
provide a copy of the transfer contract concluded with the club A, nor confirm the
claim made by the Claimant on the basis of press reports. At the same time, the
club Y gave FIFA permission to contact the club A in order to obtain a copy of the
relevant transfer agreement.
9.
On 10 April 2006, the Claimant stated that as the transfer of the player in
question had taken place in August 2003, it could not provide any copies of the
press reports from which it had learnt that the transfer compensation had
amounted to USD 3,000,000.
10.
On 25 April 2006, FIFA contacted the Football Federation of the club A and the
club A requesting a copy of the respective transfer contract.
11.
On 3 May 2006, the Football Federation of the club A provided FIFA with a copy
of the transfer contract concluded by and between the Respondent and the club
A. Point 4 of this contract stipulates that the parties had agreed on a transfer
compensation of USD 1,300,000 and that this compensation was “net of all taxes
or contributions”. At the same time, the Football Federation of the club A
informed FIFA of the position of its affiliated club. The club A stated, in particular,
that the player Z had been transferred to Y on 14 August 2003, i.e. over two years
ago. The club A therefore expressed its amazement at the fact that the Dispute
Resolution Chamber had now been called upon to adjudicate on this matter.
12.
On 15 May 2006, FIFA once again invited the Respondent to pay the
corresponding solidarity contribution to the Claimant, or to state reasons for
refusing to do so.
13.
On 22 May 2006, the Respondent stated that it would not be making any
payment to the Claimant. In its letter, the Respondent referred to art. 25 par. 5 of
the Regulations for the Status and Transfer of Players (2005 edition) and stated
that the player had been signed in August 2003. The club Y alleged that the
Claimant had waited for more than two years before making its claim and, on the
same occasion, stressed that it had not prevented the Claimant from making its
claim earlier.
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Club X / Club Y, player Z
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Chamber analysed whether it was competent to deal with the
matter at stake. In this respect, it referred to art. 18 par. 2 and 3 of the Rules
Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber. The present matter was submitted to FIFA on 5 September
2005. As a consequence, the Chamber concluded that the revised Rules Governing
Procedures (edition 2005) on matters pending before the decision-making bodies
of FIFA are applicable on the matter at hand. In this context, and by taking into
account the circumstances of the present matter, the Chamber deemed it
important to clarify that chapter VII of the Regulations for the Status and Transfer
of Players (edition 2005) equally governs procedural issues which is the reason
why the said chapter also applies to the present matter insofar as procedural
questions are concerned.
2.
With regard to the competence of the Chamber, art. 3 par. 1 of the abovementioned Rules states that the Dispute Resolution Chamber shall examine its
jurisdiction in the light of articles 22 to 24 of the current version of the
Regulations for the Status and Transfer of Players (edition 2005). In accordance
with art. 24 par. 1 in combination with art. 22 (d) of the aforementioned
Regulations, the Dispute Resolution Chamber shall adjudicate on disputes
between two clubs belonging to different Associations related to solidarity
mechanism.
3.
As a consequence, the Dispute Resolution Chamber is the competent body to
decide on the present litigation concerning the distribution of the solidarity
contribution claimed by the Claimant in connection with the transfer of the
professional player Z during the course of a contract.
4.
Subsequently, the members of the Chamber analyzed which edition of the
Regulations for the Status and Transfer of Players should be applicable as to the
substance of the matter. In this respect, the Chamber referred to art. 26 par. 1 and
2 of the Regulations for the Status and Transfer of Players (edition 2005) in the
modified version in accordance with the FIFA circular no. 995 dated 23 September
2005. Furthermore, it acknowledged that the professional had been registered for
the Respondent on 15 August 2003. In view of the aforementioned, the Chamber
concluded that the former FIFA Regulations for the Status and Transfer of Players
(edition 2001, hereinafter: the Regulations) are applicable to the case at hand as
to the substance.
5.
In continuation, and entering into the substance of the matter, the members of
the Chamber started to carefully study the facts outlined above and, in this
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Club X / Club Y, player Z
respect, first of all, referred to the latest argument of the Respondent according
to which the latter disputed its obligation to distribute any amount as solidarity
contribution to the Claimant by invoking prescription.
6.
In this respect, the Chamber referred to art. 11 par. 1 of the Regulations
governing the Application of the Regulations which clearly establishes that the
player’s new club shall pay the amount due as solidarity contribution to the
training club(s) no later than 30 days after the player’s registration. Consequently,
the Chamber unanimously concluded that the clubs involved in the player’s
training and education are entitled to bring an action in front of FIFA for the nonpayment of the solidarity contribution against the player’s new club in cases in
which such payment was not voluntarily made by the latter within the
aforementioned time frame, i.e. within 30 days after the player’s registration for
the new club. Prior to the expiry of this 30-day time limit, training clubs do not
have any legal interest in starting legal action. In other words, the Chamber
stressed that training clubs may start legal proceedings relating to the amount
due as solidarity contribution in connection with the training and education of a
player not earlier than 31 days after the player’s registration for the new club.
7.
In this context, the Chamber acknowledged that the player in question was
registered for the Respondent on 15 August 2003. Taking into account this fact as
well as its foregoing conclusion, the Chamber determined that the Claimant was
entitled to claim for the relevant contribution of the solidarity mechanism in front
of FIFA as from 16 September 2003 onwards.
8.
In continuation, the Chamber referred to art. 25 par. 5 of the Regulations for the
Status and Transfer of Players (edition 2005) which, in completion to the
provisions foreseen in the revised Rules Governing the Procedures, establishes that
no case shall be heard if more than two years have elapsed since the facts leading
to the dispute arose. In the present matter, so the Chamber, the event leading to
the dispute must be seen in the fact that the Respondent did not pay any amount
as solidarity contribution to the Claimant until 15 September 2003, i.e. the
aforementioned 30 days limit. In light of all of the above, the Chamber
emphasised that the Claimant’s complaint for its proportion of the contribution of
the solidarity mechanism was brought to FIFA on 5 September 2005, thus, 11 days
prior to 16 September 2005, and, therefore, within the time limit set out in art. 25
par. 5 of the Regulations for the Status and Transfer of Players (edition 2005) in
combination with art. 11 par. 1 of the Regulations governing the Application of
the Regulations. Consequently, the Chamber concluded that the Respondent’s
argument for prescription cannot be taken into consideration.
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Club X / Club Y, player Z
9.
Once the issue regarding possible prescription had been clarified, the Dispute
Resolution Chamber went on to evaluate whether or not the Claimant was
entitled to any proportion of the solidarity mechanism foreseen in art. 25 ff. of
the Regulations related to the transfer of the player concerned from the club A to
the Respondent.
10.
In this regard, the member of the Chamber carefully studied the facts outlined
above and emphasised that, as further established in art. 25 of the Regulations,
the new club, to which the player is transferred during the course of an
employment contract with his previous club, is the club responsible for the
distribution of 5% of the respective transfer compensation to the player’s training
clubs.
11.
Subsequently, the Chamber referred to art. 10 of the Regulations governing the
Application of the Regulations, which provides the figures for the distribution of
the solidarity contribution, taking into consideration the time the player was
trained and educated by the club concerned.
12.
Therefore, and considering that the player in question was born on 27 January
1975 and registered with the Claimant for the first time as from 25 February 1994
to 30 June 1994, later on as from 31 January 1995 to 30 June 1995 and from 1
January 1996 to 4 March 1996 as well as from 16 July 1996 to 4 January 1997, the
Chamber concluded that 13% of the 5% solidarity contribution shall be
apportioned to the Claimant.
13.
Moreover, as it was ascertained that the amount paid by the Respondent to the
player’s former club, A, for the definite transfer of the player Z was USD
1,300,000, the Chamber came to the conclusion that the Claimant is entitled to
13% of the 5% solidarity contribution, or, in other words to the amount of USD
8,450 (13% of 5% of USD 1,300,000).
14.
In light of all of the above, the Chamber decided that the Respondent is liable to
pay the amount of USD 8,450 as solidarity contribution to the Claimant.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, club X, is accepted.
2.
The Respondent, club Y, has to pay the amount of USD 8,450 to the Claimant, club
X.
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Club X / Club Y, player Z
3.
The amount due to the Claimant has to be paid by the Respondent within 30
days as from the date of notification of the present decision.
4.
If the Respondent fails to comply with the above-mentioned deadline, an interest
rate of 5% per year will apply and the case will immediately be presented to the
FIFA Disciplinary Committee.
5.
The Claimant is directed to inform the Respondent immediately of the account
number to which the remittance is to be made and to notify the Dispute
Resolution Chamber of every payment received.
6.
According to art. 61 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:
Avenue de Beaumont 2
CH-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:
Urs Linsi
General Secretary
Encl.
CAS directives
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Club X / Club Y, player Z