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 Mc Guire (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, AA ,
as Intervening party
regarding the solidarity contribution related to the
transfer of the player X
I.
Facts of the case:
1.
According to the official confirmation from the AA n Football Federation, the
player X , born on 2 January 1980, was registered with A from 8 January 2000
until 20 September 2001, that is between the ages of 20 and 21.
2.
On 1 September 2003, the player was transferred from C to B (BB ) for the amount
of USD 1’750’000 in accordance with the relevant transfer agreement.
3.
On 22 February 2005, A contacted FIFA and lodged a claim against B . At first, A
was claiming the portion of the solidarity contribution amounting to USD
19’769.82 based on the information it had at that time, i.e. the registration of the
player with A from 8 August 2000 until 31 July 2002 and an assumed transfer
amount of USD 2’000’000.00.
4.
In reply thereto, B maintained that it had already paid USD 2’550’000 to C for the
transfer of the player and that it still owed the amount of USD 200’000 to the
player’s former club. According to this information, the total transfer
compensation amounted thus to USD 2’750’000. Furthermore, it submitted a
proposal to settle the present case in an amicable way, i.e., that it would withhold
the amount claimed as solidarity contribution by A , i.e. USD 19’769.82, from the
last installment it had to pay as compensation to C, USD 200’000, and, as a
consequence, it would pay the amount of USD 180’230.18 to C and USD 19’769.82
directly to A as solidarity contribution.
5.
FIFA informed the parties concerned that the proposal of B is consistent with the
jurisprudence of the Dispute Resolution Chamber as well as with the applicable
edition of the Regulations for the Status and Transfer of Players, in accordance
with which the player’s new club is authorized to withhold 5% of the
compensation payable to the former club and is compelled to remit the relevant
proportion of 5% to the club(s) involved in the player’s training as solidarity
contribution.
6.
On 5 July 2005, A informed FIFA that the amount due as solidarity contribution
should be adjusted according to the actual value of the transfer compensation
which was paid by B to C for the transfer of the player, i.e. USD 2’750’000.00,
instead of the initially assumed amount of USD 2’000’000. Therefore, it was of the
opinion being entitled to receive USD 27’183.50 as solidarity contribution instead
of the previously claimed amount of USD 19’769.82.
Solidarity Contribution for the player X
(Club A , AA / Club B , BB )
2
7.
Thereafter, FIFA reminded the parties concerned once again of the jurisprudence
of the Dispute Resolution Chamber in similar cases and suggested that B should
withhold the newly claimed amount, i.e. USD 27’183.50, as solidarity contribution
from the last installment it had to pay as compensation to C (USD 200’000). In
consequence, the BB club would pay the amount of USD 172’816.50 to C and USD
27’183.50 directly to A as solidarity contribution.
8.
On 1 August 2005, A informed that it agrees with the said proposal.
9.
On 2 August 2005, B informed that, in the meantime, it had paid, in conformity
with its previous proposal, the amount of USD 180’230.18 to the bank account of C
but had not been able to pay the outstanding amount of USD 19’769.82 to A
since it was not yet provided with the latter’s bank details.
10.
Therefore, FIFA suggested the following pragmatic procedure:
1) C pays the amount of USD 7’413.68, i.e. the amount that it received in
excess from B , to the bank account of A .
2) B , in the meantime having been provided with the bank details of A ,
pays to A USD 19’769.82 as outstanding solidarity contribution.
11.
In reply thereto, B confirmed that it had paid the amount of USD 19’769.82 to the
bank account of A and recalled that the amount of USD 180’230.18 was paid to C.
Therefore, it deemed having fulfilled all its obligations with respect to the present
case.
12.
On account of this situation, FIFA informed the parties that apparently only the
payment from C was outstanding in order for the present affair to be solved.
Therefore, FIFA invited C to proceed with the payment of the outstanding amount
of USD 7’413.68 to the bank account of A .
13.
In this respect, C replied on 7 September 2005 that FIFA was not correctly informed
about the details of the case at hand and provided the transfer agreement it
signed with B for the transfer of the captioned player. According to this transfer
agreement, the transfer compensation, which was to be paid by B to C for the
transfer of the player X was in the amount of USD 1’750’000 instead of the
perpetually assumed amount of USD 2’750’000, which had been initially indicated
by B . Furthermore, C stated that, contrary to the specifications of the legal
representative of A , the player had been registered with A from 8 August 2000
until 2 August 2001 only. Therefore, C deemed that A is only entitled to receive
the amount of USD 8’750 as solidarity contribution although it had already
received the amount of USD 19’769.82. Based on its calculation, C concluded that
Solidarity Contribution for the player X
(Club A , AA / Club B , BB )
3
it has nothing to pay to A but rather has to receive from A the amount of USD
11’019.82.
14.
FIFA requested the AA n Football Federation to send again an official
confirmation with regard to the registration of the player X at the member clubs
within its association. On 19 September 2005, the AA n Football Federation
confirmed that the player was registered with A from 8 January 2000 until 20
September 2001.
15.
On 23 September 2005, B provided FIFA with a breakdown of the payments it
made in connection with the transfer of the player X . Based on this breakdown, it
can be noted that, within the scope of the player’s transfer, B made several
payments to third parties. According to B , the payments it made were the
following:
- 1 September 2003
- 10 September 2003
- 27 February 2004
- 30 April 2004
- 30 August 2004
- 5 January 2005
- 11 April 2005
- 22 July 2005
- 19 August 2005
USD 1’000’000
USD 100’000
USD 500’000
USD 350’000
USD 250’000
USD 200’000
USD 150’000
USD 180’230
USD
19’769
..
C b bank transfer
.. Sport
C by bank transfer
Mr ..on behalf of C
Mr --on behalf of C
Mr --on behalf of C
C by bank transfer
A for the solidarity contribution
16.
Having been confronted with the new facts, A remained of its opinion that the
amount which should be taken into account for the calculation of the amount
payable as solidarity contribution to the club A is USD 2’750’000.00
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 22 February
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.
Solidarity Contribution for the player X
(Club A , AA / Club B , BB )
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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 AA n club, A , in connection with the transfer of the
professional player X to the BB club, B , 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 player in question had
been registered for his new club in September 2003. Equally the Chamber took
note that the claim was lodged at FIFA on 22 February 2005. In view of the
aforementioned, the Chamber concluded that the former FIFA Regulations for the
Status and Transfer of Players (edition 2001, hereafter: 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 carefully studied the facts outlined above, which show that the
player in question was transferred on 1 September 2003 from C to B on a definite
basis.
6.
The Chamber took note that, to this end, a transfer agreement between C and B
had been signed for the definitive transfer of the player X to the aforementioned
BB club.
7.
At this point, the Chamber recalled that, as established in art. 25 of the
Regulations in combination with art. 11 par. 1 of the Regulations governing the
Application of the Regulations (hereafter: 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.
8.
In this respect, the members of the Chamber took into account that B had not
disputed A ’s apparent right to a proportion of the solidarity contribution. It was
even noted by the Chamber that the parties made efforts to amicably settle the
present affair without success given the different positions concerning the
registration period of the player concerned with A and the divergent statements
Solidarity Contribution for the player X
(Club A , AA / Club B , BB )
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concerning the relevant transfer compensation paid by B to the player’s former
club, C.
9.
The Chamber took particular note of the fact that C has intervened in the present
matter.
10.
The members took note that B paid the amount of USD 19’769.82 to A
maintaining that this amount reflects the latter’s proportion of the solidarity
contribution and, at the same time, deducted the aforementioned amount from
the last instalment, i.e. USD 200’000, of the compensation that it owed to C for the
transfer of the player. A has not contested that such payment was received from B
. Furthermore, the Chamber noted that A , after having been provided with all the
pertinent facts in relation to the transfer of the player in question, deemed that its
proportion of the solidarity contribution should amount to USD 27’183.50.
11.
Indeed, according to A , the amount paid by B to C, amounted to USD 2’750’000.
In this respect, A appears to base itself on B ’s correspondence dated 21 June
2005, in which the latter confirms having paid USD 2’550’000 to C and that USD
200’000 are still outstanding.
12.
The Chamber underlined, however, that the intervening party, C, by means of its
correspondence dated 7 September 2005, submitted via the AA n Football
Federation, provided the relevant transfer agreement for the transfer of the
player in question to B , according to which it was stipulated that the latter had to
pay the amount of USD 1’750’000 to C for the transfer of the player in question.
However, it was
observed by the members that B , within the scope of that transaction, made also
payments to third parties.
13.
In this respect, the members deemed it important to clarify that, in accordance
with art. 25 par. 1 of the Regulations in connection with art. 10 of the Application
Regulations, the calculation of the amount payable as solidarity contribution is
based on the amount paid to the former club of the player (emphasize
added). The Chamber was therefore of the unanimous opinion that, in compliance
with the above-mentioned provisions of the Regulations and the Application
Regulations, the amounts paid to third parties, like in the present case, cannot be
taken into account for the calculation of the amount due as solidarity
contribution, since they do not represent payments made by the player’s new club
to the player’s former club.
14.
On account of the above considerations, the members of the Chamber stated that
the relevant amount to be put at the basis for the calculation of the solidarity
Solidarity Contribution for the player X
(Club A , AA / Club B , BB )
6
contribution is the amount agreed upon in accordance with the relevant transfer
agreement, i.e. USD 1’750’000.
15.
Having established that the amount at the basis for the calculation of the
solidarity contribution is USD 1’750’000, the members subsequently referred to art.
10 of the Application Regulations which provides the figures for the calculation of
the solidarity contribution, taking into consideration the age of the player at the
time he was provided with training and education by a specific club.
16.
In the present case, the Chamber outlined that according to the player passport
submitted by the AA n Football Federation, the period of time to be taken into
account is from 8 January 2000 until 20 September 2001, i.e. the time the player
had been registered with A .
17.
In light of all the above, the Chamber decided that the period of training and
education to be taken into account corresponds to one and a half year, for the
player’s registration between the ages of 20 to 21.
18.
Therefore, the Chamber established that, in accordance with the breakdown
provided for in art. 10 of the Application Regulations, 15% of 5% of the solidarity
contribution shall be apportioned to A , thus an amount of USD 13’125.
19.
In this respect, the members recalled that, the player’s new club, B , had already
paid to A the amount of USD 19’769.82 as solidarity contribution and had
withheld this amount from the last instalment of the transfer compensation that it
had to pay to C for the transfer of the player in question.
20.
Taking into account all of the above, the Dispute Resolution Chamber decided
that A actually received USD 6’644.82 in excess of its proportion to the solidarity
contribution as calculated above. The Chamber decided therefore that A has to
reimburse to B the amount of USD 6’644.82.
21.
At the same time, the members of the Chamber noted that B deducted the
amount of USD 19’769.82 from the last instalment of the compensation it owed to
C on the basis of the transfer agreement signed between these clubs. Having
established that the amount of solidarity contribution due to A amounts to USD
13’125, the members of the Chamber concluded that B had withheld the amount
of USD 6’644.82 in excess of the proportion of the solidarity contribution relating
to A .
22.
Therefore, the deciding body decided that B has to reimburse to C the amount of
USD 6’644.82.
Solidarity Contribution for the player X
(Club A , AA / Club B , BB )
7
III.
Decision of the Dispute Resolution Chamber
1.
The claim of A is rejected.
2.
The club, A , has to reimburse to B the amount of USD 6’644.82 within 30 days
as from the date of notification of this decision.
3.
If the aforementioned sum 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 to FIFA’s Disciplinary Committee, so that the
necessary disciplinary sanctions may be imposed.
4.
The BB club, B , is directed to inform A 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.
5.
B has to reimburse to the Intervening party, C, the amount of USD 6’644.82
within 30 days as from the date of notification of this decision.
6.
If the aforementioned sum 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 to FIFA’s Disciplinary Committee, so that the
necessary disciplinary sanctions may be imposed.
7.
The intervening party, C, is directed to inform 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
8.
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
Switzerland
Solidarity Contribution for the player X
(Club A , AA / Club B , BB )
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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 )
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