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
Rinaldo Martorelli (Brazil), Member
Mick McGuire (England), Member
Jean-Marie Philips (Belgium), Member
Zola Majavu (South Africa), Member
on a matter between the club,
A, AA
represented by Mr U, attorney at law
and the club,
B, BB
and the club,
C, CC
as Intervening party
regarding the solidarity contribution related to the
transfer of the player X
I.
Facts of the case:
1.
The player X born on 18 May 1981.
2.
According to the official confirmation received from the A Football Federation,
the player was registered with the A club, , for the football season 1998/1999
between the ages of 17 and 18.
3.
On 20 June 2002, the player in question was transferred from the C club, , to the B
club, , when the player was 21 years old.
4.
The relevant transfer compensation amounted to EUR 5’900’000.00.
5.
In accordance with the terms stipulated in the transfer contract, the B club
undertook to pay to the C club the transfer amount in three installments as
follows:
- EUR 2’000’000.00 until 30 June 2002
- EUR 1’950’000.00 until 30 June 2003
- EUR 1’950’000.00 until 31 December 2003
6.
On 8 April 2005, the A club, , lodged a claim in front of FIFA regarding its portion
of the solidarity contribution concerning this transfer and claimed 10% of 5% of
the transfer compensation paid by B , i.e. EUR 29’500.00, and also late payment
interest of 5%. Moreover, the A club requested that the B club should pay it the
costs of arbitration, i.e. reasonable travel expenses and costs of expert advices.
7.
In addition to that, the A club informed that, as decided in other decisions passed
by the Dispute Resolution Chamber, the solidarity contribution has only to be paid
when the relevant installments of the transfer compensation are due. On account
of these considerations, the A club deemed that, at least, the two installments of
the transfer compensation, which were due on 30 June and 31 December 2003,
have to be taken into account when establishing its entitlement to the solidarity
contribution. Finally, the A club stated that in case the Dispute Resolution
Chamber would find that its claim for solidarity contribution relating to the first
installment of the transfer compensation has to be considered as prescribed, the B
club shall then be urged to pay the solidarity contribution to the “National
Association of Respondent” in accordance with Chapter 4 of the FIFA Circular nº
769.
Solidarity Contribution for the player X
(Club A , AA / Club B , BB)
2
8.
The B club in its statements informed that it already paid the entire transfer
compensation to the C club, C , and that it was surprised to receive the claim from
the A club three years after the transfer of the player in question took place. It
suggested that the A club should turn against the C club in order to collect its
claimed amount.
9.
The C club, C , mentioned in its statement that during the negotiations with B for
the transfer of the player in question, it had never been agreed that the solidarity
contribution should be on account of C . Therefore, it rejected any responsibility
with regard to the payment of the solidarity contribution.
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 8 April 2005, as
a consequence the Chamber concluded that the previous Procedural Rules (edition
2001) on matters pending before the decision making bodies of FIFA are
applicable to the matter at hand.
2.
With regard to the competence of the Chamber, art. 25 par. 2 of the FIFA
Regulations for the Status and Transfer of Players (edition 2001) establishes that, it
falls within the purview of the Dispute Resolution Chamber to review disputes
concerning the distribution of the solidarity contribution.
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 club, A , in connection with the transfer of the
professional player X during the course of an employment 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 player in question had
been registered for his new club, B , in June or July 2002. Equally, the Chamber
took note that the claim was lodged at FIFA on 8 April 2005. In view of the
aforementioned, the Chamber concluded that the former FIFA Regulations for the
Solidarity Contribution for the player X
(Club A , AA / Club B , BB)
3
Status and Transfer of Players (edition 2001, hereinafter: the Regulations) are
applicable to the case at hand as to the substance.
5.
In continuation, the members took note of the B club’s objection that the claim of
the A club should not be considered admissible on the grounds that the claim
before FIFA had been filed out of time.
6.
In this regard, the members underlined that it is actually the responsibility of the
new club to calculate the amount of the solidarity contribution and the way in
which it shall be distributed in accordance with the player’s career history. For that
purpose, the new club may ask the player for his assistance in order to help in
discharging its obligation (cf. art. 11 par. 2 of the Regulations governing the
Application of the Regulations, hereinafter; the Application Regulations).
7.
Furthermore, the Chamber referred to art. 44 of the Regulations in connection
with art. 4 of the Rules Governing the Practice and Procedures of the Dispute
Resolution Chamber (edition 2002), which state that the Chamber will not hear
any case if more than two years have elapsed since the facts leading to the dispute
arose. The members of the Chamber took note that, in the case at hand, the
relevant transfer compensation paid by the B club to C for the transfer of the
player in question was paid in three instalments.
8.
In this respect, the Chamber deemed it appropriate to explain that, in order for it
to duly consider the question whether the N club’s claim is admissible or not, it has
to differ between the three instalments which were paid by B to C as transfer
compensation pursuant to the transfer agreement the two clubs signed. In fact,
such procedure appeared to be necessary since it was already an established
jurisprudence of the Dispute Resolution Chamber under the former Regulations
(edition 2001) that in case of contingent payments, the relevant solidarity
contribution should be payable 30 days after the date of such payments. It is in
fact on the basis of this jurisprudence that the revised Regulations (edition 2005)
explicitly provide for this rule (cf. art. 2 par. 1 of Annex 5 of the revised
Regulations for the Status and Transfer of Players).
9.
In this connection, the members of the Chamber went on to examine the relevant
transfer agreement signed between the two aforementioned clubs and noted that
the first instalment agreed in the amount of EUR 2’000’000.00 was to be paid by
the B club to the C club until 30 June 2002. On the other hand, the Chamber took
note that the A club lodged its claim before FIFA on 8 April 2005.
10.
In view of the above, the Chamber pointed out that between the moment the
facts leading to the dispute arose and the moment the A club lodged its claim
before FIFA, more than two years have elapsed. Therefore, the members of the
Chamber concluded that this part of the A club’s claim for solidarity contribution
Solidarity Contribution for the player X
(Club A , AA / Club B , BB)
4
in relation to the first instalment paid by B
prescription.
to C is not receivable due to
11.
In continuation, the members of the Chamber took note of the A club’s position
contained in its correspondence dated 15 October 2005, that in case the Dispute
Resolution Chamber would find that its claim for solidarity contribution relating to
the first instalment of the transfer compensation has to be considered as
prescribed, the B club, pursuant to Chapter 4 of FIFA Circular nº 769, should then
be held liable to pay the relevant part of the solidarity contribution to the
“National Association of Respondent”.
12.
In this respect, the deciding body referred to the jurisprudence of the Dispute
Resolution Chamber, which has been confirmed recently by the Court of
Arbitration for Sport (CAS), according to which, as a general rule under the former
Regulations (version 2001), associations are not entitled to receive a proportion of
the solidarity contribution for years during which it was not possible to identify
any clubs having trained a given player.
13.
As a result of the above-mentioned considerations, the Chamber concluded that it
has to reject the claim of the A club also in this respect.
14.
Furthermore, with regard to the second and third instalment paid by B to C for the
transfer of the player in question, the members noted that those payments were
due on 30 June 2003 and 31 December 2003 respectively, whereas the A club
lodged its claim for the solidarity contribution on 8 April 2005.
15.
In view of the above, the members of the Chamber concluded that the claim for
solidarity contribution put forward by the A club with regard to the second and
third instalment paid by the B club to the C club had been lodged within the twoyears prescription period and thus is to be considered receivable.
16.
In continuation, and entering into the substance of the matter, the members of
the Chamber carefully studied the facts outlined above and emphasized that, as
established in art. 25 par. 1 of the Regulations in combination with art. 11 par. 1
of the Application Regulations, the new club to which a player is transferred, is
the club responsible for the distribution of 5% of any compensation it paid to his
former club, to the club(s) involved in the training and education of the player
between the ages of 12 and 23.
17.
In continuation, the Chamber duly noted that B (the player’s new club) asserts
having paid the entire amount of EUR 5’900’000.00, agreed upon as transfer
compensation, to C (the player’s previous club) and that A should thus turn to the
aforementioned C club in order to collect the amount relating to its part of the
Solidarity Contribution for the player X
(Club A , AA / Club B , BB)
5
5% solidarity contribution. In other words, B omitted to deduct 5% of the
relevant transfer compensation relating to the solidarity mechanism.
18.
In this respect, the Chamber referred to 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 art. 11 of the Application
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.
19.
In light of the aforementioned well-established jurisprudence, the members of the
Dispute Resolution Chamber concluded that it is the responsibility of the new club,
i.e. B, to pay the relevant proportion of the solidarity contribution to A , which
was involved in the player’s training. Furthermore, and bearing in mind that the
5% solidarity contribution is to be deducted from the amount payable to the
player’s former club, C will have to refund the same proportion to B .
20.
After having established B ’s obligation to distribute the relevant proportion of
the solidarity contribution to A , the Chamber went on to deliberate on the proper
calculation of the said proportion due to A .
21.
To that regard, the Chamber referred to art. 10 of the Application Regulations,
which provides the figures for the distribution of the solidarity contribution,
according to the time the player was effectively trained by a specific club.
22.
In the present case, the Chamber outlined that according to the player passport
submitted by the Hellenic Football Federation, the period to be taken into account
is the football season 1998/1999 in AA , i.e. the time the player had been
registered with A .
23.
In light of all of the above, the Chamber decided that the period of effective
training to be taken into account corresponds to 1 year, for the player’s
registration between his ages of 17 to 18.
24.
Therefore, the Chamber established that, in accordance with the breakdown
provided for in art. 10 of the Application Regulations, A is entitled to receive 10%
of 5% of the relevant, not prescribed, parts of the transfer compensation paid by
B to C in relation to the transfer of the player X.
25.
In this respect, the Chamber recalled that only the second and third instalment of
the transfer compensation paid by the B club to the C club can be taken into
consideration for the calculation of the solidarity contribution due to the A club.
Solidarity Contribution for the player X
(Club A , AA / Club B , BB)
6
Therefore, the members stated that the relevant amount to be put at the basis of
the calculation is EUR 3’900’000.00 (2x EUR 1’950’000.00).
26.
Consequently, taking into account all the above, the Dispute Resolution Chamber
decided that B must pay to A the amount of EUR 19’500.00 (2 x EUR 9’750.00 each
for the second and the third instalment) as solidarity contribution for the training
and education of the player X.
27.
In this respect, the members of the Chamber made reference to art. 11 par. 1
of the Application Regulations, which reads, inter alia, that the amount due as
a solidarity contribution shall be paid by the new club to the training clubs
pursuant to the above provisions at the latest within 30 days of the player’s
new registration. With regard to the case at stake, the members stated,
however, that, as elucidated above, the second and third installments of the
transfer compensation were due on 30 June 2003 and on 31 December 2003
respectively.
28.
Consequently, in light of the fact that this payment were due at the latest
since 1 July 2003 and 1 January 2004, the Chamber established that a default
interest payment of 5% p.a. as of 1 July 2003 for the amount of EUR 9’750.00
and from 1 January 2004 for the amount of EUR 9’750.00 must be applied.
29.
Turning its attention to the reimbursement of legal expenses claimed by the A
club, the Chamber referred to its well established jurisprudence in accordance with
which no procedural compensation shall be awarded in proceedings in front of the
Dispute Resolution Chamber. Furthermore, the members stated that the N club did
not quantify these compensations at all, nor provided FIFA with any proving
document. Consequently, the Chamber decided not to award such claimed
expenses.
30.
Finally, in line with the above considerations, the previous club of the player that
was involved in the transfer of the player in question to the B club, i.e. C , is liable
to reimburse to B the relevant amount of EUR 19’500.00.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of A is partially accepted.
Solidarity Contribution for the player X
(Club A , AA / Club B , BB)
7
2.
The B club, shall pay the total amount of EUR 19’500.00 (2x EUR 9’750.00) to A
within 30 days as from the date of notification of this decision.
3.
On the respective amounts of EUR 9’750.00 each, a default interest payment of 5%
p.a. as from 1 July 2003 and 1 January 2004 respectively, until the date of the
payment is applied.
4.
Any further claims lodged by A are rejected.
5.
In the event that the above-mentioned amounts are not paid within the stated
deadline, the present matter shall be submitted to FIFA’s Disciplinary Committee,
so that the necessary disciplinary sanctions may be imposed.
6.
The Greek club, A , is instructed to inform the B club, B , directly and immediately
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 C club, C , has to reimburse to B the amount of EUR 19’500.00 within 30
days as from the date of notification of this decision.
8.
In the event that the above-mentioned amount is not paid within the stated
deadline, the present matter shall be submitted to FIFA’s Disciplinary Committee,
so that the necessary disciplinary sanctions may be imposed.
9.
The B club, B , is directed to inform the C club, C , directly and immediately of the
account number to which the remittance is to be made and to notify the Dispute
Resolution Chamber of every payment received.
10.
According to art. 61 par. 1 of the FIFA Statutes this decision may be appealed
before the Court of Arbitration for Sport (CAS). The statement of appeal must be
sent to the CAS directly within 21 days of receiving notification of this decision
and has to contain all elements in accordance with point 2 of the directives issued
by the CAS, copy of which we enclose hereto. Within another 10 days following
the expiry of the time limit for the filing of the statement of appeal, the appellant
shall file with the CAS a brief stating the facts and legal arguments giving rise to
the appeal (cf. point 4 of the directives).
The full address and contact numbers of the CAS are the following:
Avenue de Beaumont 2
1012 Lausanne
Solidarity Contribution for the player X
(Club A , AA / Club B , BB)
8
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
Solidarity Contribution for the player X
(Club A , AA / Club B , BB)
9