Training Compensation
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 10 August 2007,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Michele Colucci (Italy), member
Mick McGuire (England), member
Mario Gallavotti (Italy), member
Mohamed Mecherara (Algeria), member
on a matter between
the club A, X
and
the club B, Y
and
the club C, Z
as Intervening party
regarding the solidarity contribution related to the
transfer of the player D.
I.
Facts of the case
1.
The football association of X confirmed that the player D, born on 22 February
1982, was registered at the E academy, A’ training centre, from 1 February 1994 to
14 August 2003.
2.
In 2003, the player was transferred from A to the club C of the country Z.
3.
On 23 August 2005, C transferred the player D to the club B of the country Y, for
the amount of EUR 900,000.
4.
On 27 October 2005, A claimed a share of the solidarity contribution of the
transfer compensation.
5.
On 7 November 2005, B replied that article 3 of the transfer agreement provided
for the fact that C was liable for the solidarity payments and requested A to
contact C directly.
6.
On 6 January 2006, A adhered to its claim for the relevant proportion of solidarity
contribution.
7.
On 10 February 2006, B replied that C had agreed to settle the solidarity payments.
Moreover, it expressed doubt as to whether the E academy was legally connected
with A. Finally, B pointed out that A was not the sole holder of the bank account
that A had notified to it and through which the solidarity contribution was to be
remitted.
8.
On 22 June 2006, A sent in decisions passed by the Dispute Resolution Chamber
and the Court of Arbitration for Sport (CAS 2004/A/799) on other cases in which
they recognised the E academy as being fully assimilated into A.
9.
In a fax dated 6 September 2006, B said it no longer contested E’s affiliation to A.
However, B insisted on the fact that C had pledged to settle the solidarity
payments and that A, having been informed of this in a letter dated 7 November
2005, had not taken any action to contact C. B did not therefore think it owned
any money to A. If the Chamber decides the opposite, C has requested that A
should let it know a bank account which only A.
10.
On 14 March 2007, the parties were informed of the Dispute Resolution Chamber’s
jurisprudence, which stated that the new club was liable to pay the solidarity
contribution, and that, if the amount had already been paid in full, the player’s
former club was obliged to reimburse the equivalent amount to his new club. The
entire file was sent to C.
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11.
On 21 March 2007, B stated it had contacted C and would pay the amount due to
A, once it had received the payment from C.
12.
On 11 May 2007, FIFA requested C to comment on the present matter.
13.
In a fax dated 4 June 2007, C explained that according to the transfer contract
signed with A regarding the player D, it had been agreed that if he was
transferred to another club, A would be entitled to 30% of the transfer
compensation after deduction of the transfer amount paid by C (i.e. USD 40,000).
As the transfer compensation to B amounted to EUR 900,000, C had already paid
the amount of EUR 260,250 (30% of EUR 900,000 minus USD 40,000) to A. C asked
why it was expected to pay more than it had already paid.
14.
On 25 June 2007, A stated that C’s argument was unfounded as it was referring to
the transfer compensation that had been freely negotiated and not the solidarity
contribution following the player's transfer from C to B.
15.
B did not comment on C’s arguments.
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 27 October
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.
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 connection with art. 22 (d) of the aforementioned
Regulations, the Dispute Resolution Chamber shall adjudicate on disputes
between 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 A in connection with the transfer of the professional D
during the course of a contract.
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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
his new club in August 2005. Equally the Chamber took note that the claim was
lodged at FIFA on 27 October 2005. In view of the aforementioned, the Chamber
concluded that the current FIFA Regulations for the Status and Transfer of Players
(edition 2005, hereafter: the Regulations) are applicable on 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 by acknowledging that, as established in the art. 21 and
annex 5 of the Regulations, the new club of the player is to distribute 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 clubs between the sporting seasons of his 12th and 23rd
birthdays.
6.
In the present case, the Chamber outlined that the entire period to be taken into
consideration with regard to the solidarity contribution would run from the
sporting season 1994, i.e. the sporting season of the player’s 12th birthday and the
sporting season 2003, i.e. the sporting season of the player’s 21st birthday.
7.
In continuation, the Chamber duly noted that, on the one hand, B (the player’s
new club) asserts having agreed in the relevant transfer agreement with C (the
player’s previous club) that the latter would be responsible to pay the relevant
solidarity contribution to A.
8.
After examining art. 3 of the transfer agreement concluded between B and C, the
Chamber considered that the relevant clause stipulated, in contradiction to art. 21
and annex 5 of the Regulations, that in connection with claims regarding the
Chapter VI of the Regulations (training compensation and solidarity mechanism) C
“indemnifies B against any such claims for compensation, up to a maximum of 5%
of the transfer fee, and C undertakes to make payment of any such lawful claims”.
9.
On account of the above, 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. 21 and annex 5 of the Regulations. At the same time, the player’s former club
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is ordered to reimburse the same proportion(s) of the 5% of the compensation
that it received from the player’s new club.
10.
As a result and in application of the said jurisprudence, the Dispute Resolution
Chamber decided that the argument of B could not be taken into consideration
and thus has to be rejected.
11.
Furthermore, the Chamber observed that during the present procedure, B firstly
doubted as to whether the E academy was legally connected with A, but at the
later stage it did not longer contested E’s affiliation to A.
12.
To that regard, the Chamber remarked at a side note that according to its
precedent jurisprudence it has been established that the E academy, which is
affiliated to the X football association under the same registration number as A, is
considered a training centre of A, and thus one legal entity regarding the
entitlement to claim solidarity contribution.
13.
Finally, the Chamber noted that B criticized the fact that A did not provide it with
the details of a bank account of which it is the sole holder. In this respect, the
Chamber stated that this argument does not have any relevant influence on the
question of A’s entitlement for solidarity contribution.
14.
On account of the above considerations, the Chamber concluded that all of B’s
arguments have to be rejected.
15.
Subsequently, the Chamber took note of the fact that, on the other hand, C tacitly
confirmed having received the amount of EUR 900,000 from B but considered that
it is not responsible to pay solidarity contribution since the relevant transfer
agreement with A already entitled the latter to 30% of the compensation received
on a transfer of the player D to a third club after deduction of the amount of USD
40,000, i.e. the amount C already paid to A. The Chamber noticed that C hereby
mutatis mutandis asserted that the relevant solidarity contribution was included in
the aforementioned 30% amount.
16.
In this context, the Chamber drew its attention to the transfer agreement
concluded between A and C in 2003 and noted that the parties had, instead of
agreeing on a transfer compensation by means of a lump sum payment, agreed
upon the following payments:
- USD 40,000, payable immediately upon receipt of the international transfer
certificate (clause 3 of the agreement),
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- USD 10,000, payable at the end of the 2003/04 local league season, provided the
player is fielded by C in not less than 80% of the official matches (clause 4 of the
agreement) and
- in case the player would be transferred from C to another club a share of 30% of
the amount received by C on the said transfer minus the amount already paid by
C to A (clause 5 of the agreement).
17.
In this respect, the Chamber concluded that the relevant agreement did not
contain any clause which could lead to the assumption that any future solidarity
contribution payable in connection with the transfer of the player to a third club,
in casu B, was already included in the transfer compensation agreed between C
and A. Thus, the argument of C had to be rejected.
18.
The Dispute Resolution Chamber then proceeded to the calculation of the relevant
solidarity contribution. In this respect, the members of the Chamber referred to
art. 1 of annex 5 of the Regulations, which provides the figures for the distribution
of the solidarity contribution, according to the time the player was effectively
trained by the clubs involved.
19.
In the present case, the Chamber outlined that according to the confirmation of
the FIF the period to be taken into consideration (period of registration of the
player with the E academy, A’ training centre) went from 1 February 1994 to 14
August 2003, during the sporting seasons of the player’s 12th and 21st birthday. In
this respect, the Chamber concluded that the period of effective training to be
taken into account corresponds to eight sporting seasons and 18 months.
20.
Therefore, the Chamber established that, in accordance with the breakdown
provided for in art. 1 of annex 5 of the Regulations, A is entitled to receive 75.41%
of the 5% of the compensation paid in relation to the transfer of the player D
from C to B.
21.
The Chamber noted that according to the transfer contract remitted to the file the
player D was transferred for the amount of EUR 900,000.
22.
Based on all of the above, the Dispute Resolution Chamber decided that B must
pay to A 75.41% of the 5% of the transfer compensation paid in relation to the
transfer of the player D, i.e. EUR 33,934.50 and that C must reimburse the amount
of EUR 33,934.50 to B.
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III.
Decision of the Dispute Resolution Chamber
1.
The claim of A is accepted.
2.
B has to pay the amount of EUR 33,934.50 to A 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.
A 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.
5.
C has to reimburse the amount of EUR 33,934.50 to B within 30 days of
notification of the present decision.
6.
If the aforementioned sum is not paid within the aforementioned deadline an
interest rate of 5% per year will apply as of expiring 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.
B is directed to inform 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.
8.
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:
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:
Jérôme Valcke
General Secretary
Encl.
CAS directives
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